JF18 Millenials Brief

1
Millennial Speech & Debate

Plea Bargaining Core File
Background 4
Most Cases are Plea Bargained 4
Pleas Fall Under Criminal Procedure Rules 5
Background 7
“Plea Bargaining Defined” 14
Negative 15
Ban Terrible 16
Reform Counterplans 17
Better to Improve Plea Process 18
General Improve Plea Bargaining Counterplans 24
Guidelines Counterplan 39
Brady Application 42
Court Monitoring Counterplan 49
Offset Prosecutorial Advantage 50
Answers to: Supreme Court Won’t Allow Limits on Plea Bargaining 52
Plea Bargaining Generally Good 55
Plea Bargaining Good – General Benefits 56
Plea Bargaining Good for Defendant -- Dignity 61
Plea Bargaining Good for Defendant – Process Protections 64
Plea Bargaining Good – Restorative Justice 68
Answers to Objections to ____ Proposal – Plea Bargaining as Dialogue 70
Restorative Justice Good 74
Advantage Answers 74
General Fairness/Due Process Answers 75
Disadvantage Links 80
Terrorism DA Shell 82
Extensions – Lashout Impact 89
Terrorism DA – Resource Trade-Off Links 90

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Terrorism DA – Resources Uniqueness 91
Court Clog Shell 92
Politics/Prosecutorial Resources Links Extensions 97
Court Clog IP Uniqueness 99
Court Clog Impact Extensions 100
Court Clog D-Rule 101
2NR Impact extensions 103
Economy – Patent Litigation 109
Economy – Generic 111
Small Business – Meltdowns 113
Innovation – Patent Litigation 116
2NC IPR Impact -- Link Module 118
2NC IPR Impact -- Economy Impact 119
2NC IPR Impact -- Competitiveness Impact 120
2NC IPR Impact -- Biotech 122
2NC IL – Democracy/Econ 123
2NC IL – Trade 125
2NC IL – Innovation 126
2NC IL – SCOTUS 127
Legal Reforms Fail to Solve 129
Affirmative 140
Mental Competence Flaw 141
Neoliberalism Bad Advantage 143
Racism Advantage – Prior Arrests Link 161
Racism – General Links 164
Racism – Disproportionate Incarceration Links 169
Injustice Advantage – General 165
Injustice Advantage – The Innocent Plead Guilty 171

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Mass Incarceration Advantage 175
Incarceration Impacts 177
Racism Impacts -- Consequential 187
Racism Impacts -- Moral 191
Racism Outweighs Other Impacts 193
Racism Impacts -- Discrimination 197
Racism Impacts – Whites Responsible 198
Answers to: Courts Correct for Any Racial Bias 201
Answers to: Plea Bargaining Helps Defendants 194
Answers to: Defendants Can Challenge Bad Deals 200
Answers to: New Court Decisions (Frye/Lafler) Improve Plea Bargaining Fairness 201
Reforms Counterplan Answers 205
Court Clog Answers 224
1AR IP cases up/ SCOTUS Key 225
Flooded Now – Adaptation Solves 228
UQ – Rule 36 Triggers I/L 229
Clog Now – Patents 231
AT Clog – A/C 233
AT Floodgates 234
4
Background
5
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.
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Pleas Fall Under Criminal Procedure Rules
Please under the federal rules of criminal procedure

Extraordinary Circumstances, https://brooklynworks.brooklaw.edu/blr/vol81/iss3/7/,
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
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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.
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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
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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. In United
States v. Farris n59 the Fourth Circuit Court of Appeals held a plea to be voluntary even though
the defendant was threatened with deportation to Guantanamo Bay if convicted at trial. n60 In
some cases there's no need for the lower court to address the question of voluntariness so long as
the totality of the circumstances is suggestive of fair procedure. In United States v. Ward, n61 for
example, the court found that the state court judge failed to address the defendant in open court to
discern the voluntariness of the plea, a violation of Rule 11(b)(2). n62 The plea was considered
voluntary on appeal because counsel was deemed effective, and there was no apparent coercion.
n63 Even threats made by a prosecutor to re-indict a defendant with harsher charges should the
defendant refuse to plea has been determined by the U.S. Supreme Court to be a plea that was
voluntarily entered into. n64 Threatening a defendant with harsher punishment following federal
prosecution should he refuse to plea to state charges is considered non-coercive, non-vindictive,
and voluntary. n65 A plea procured following threats to prosecute a family member or some other
third party is considered by the courts to be voluntary. n66 Perhaps the most troublesome
opinions arising from questions addressing voluntariness are those where a defendant claims third
party coercion, but where they've stated in open court that they were voluntarily entering the plea.
n67 Following Blackledge v. Allison, n68 an affirmative declaration of voluntariness "in open
court carries a strong presumption of verity." n69 Of greatest concern is the faulty presumption
that Rule 11(b)(2) in any way guarantees that a defendant's open court statements are made
voluntarily. n70 In United States v. Padilla-Galarza, n71 a motion to withdraw a plea was rejected
because the court considered the plea to have been voluntarily entered into despite the defendant's
claim that he had been coached through the hearing by his defense attorney, and he was suffering
from mental impairment. n72 Because the defendant stated in court that he understood the
agreement ("knowing"), the defense attorney did not raise any concerns about the defendant, and
the court found the defendant "articulate and in command of himself," the motion to withdraw
was denied. n73 United States v. Hernandez n74 affirmed the voluntariness of a plea because the
defendant stated in open court through a translator that he had discussed the plea with his
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attorney, and he understood it. n75 Subsequently he would claim that he had been misled by his
attorney regarding the consequences of the plea. n76 In Corbitt v. New Jersey n77 the majority
ruled that plea-bargaining did not violate the equal protection clause of the 14th amendment. n78
Like previous court opinions the plea met constitutional knowing and voluntary standards if the
record indicates that the defendant understood the charges against him and entered the guilty plea
without threats or false promises. The majority opinion in Corbitt held that promising a defendant
leniency in sentencing to induce a guilty plea was not suggestive of a threat of retaliation should
the defendant choose to exercise his right to trial where, if he was to be found guilty, he would
likely face far more severe punishment. n79 There are costs and benefits to both pursuing a trial
and entering the guilty plea and "equal protection does not free those who made a bad assessment
of risks or a bad choice from the consequences of their decision." n80
C. Mental Capacity
Despite the "reasoned choice" position taken by the Ninth Circuit Court of Appeals
with regard to the standard of competency in the Moran case discussed below, the test of
mental competency to plea is the same as the one used to determine whether one is fit to
stand trial - "understand and assist." n81 Case law in this area suggests that challenging the
voluntariness of a plea based upon mental competency is nearly always a loser. For example, in
United States v. Morrisette, n82 the plea was considered valid despite the fact that the defendant
was heavily medicated on anti-psychotic drugs. n83 Since the court was convinced that the
medications did not affect the defendant's cognitive ability, and since the defendant appeared
coherent while in court, the plea was voluntarily entered into. n84 Likewise in Dennis v. Budge,
n85 the Ninth Circuit Court of Appeal found the defendant competent to enter his plea despite the
defendant's record of mental illness and suicide attempts. n86 The Court was convinced that a
psychologist's evaluation, and the defendant's courtroom demeanor were suggestive of
competency. n87 While the overwhelming case law in this area upholds pleas despite claims
challenging mental competency, there are a few that do not. Burt v. Uchtman n88 is one such
case. n89 Here the Seventh Circuit invalidated a plea because the court failed to conduct a
competency hearing. n90 It was known to the court that the defendant had suffered severe mental
problems, was using psychotropic medications, and had difficulty remaining alert. n91 Important
for our purposes is the Eighth Circuit Court of Appeal opinion in Shafer v. Bowersox. n92 Here,
the Court ruled the plea invalid because experts had established that the defendant tended to
make, "impulsive and irrational decisions." n93 Despite being in possession of this information
prior to accepting the plea, the court none-the-less failed to hold a competency hearing. n94
What's interesting in regard to this case and the language used in the Eighth Circuit opinion is that
one need not be mentally ill to make "impulsive and irrational decisions," in fact as we shall
establish below, it's quite simply a very human way to act. n95
D. The Impact of Knowing and Voluntary Case Law on Pleas
Each of the cases discussed in the previous section helped to shape the legal definition of
"knowingly and voluntarily" with regard to the constitutionality of guilty pleas in ways that raise
serious concerns for due process. As evidenced by the majority opinions in these decisions, the
U.S. Supreme Court and the many circuit courts that have ruled on the knowing and voluntary
and mental competency claims demonstrate a woeful lack of scientific understanding regarding a
defendant's ability to make decisions in their own best interest and fail to take contemporary brain
science and phenomenological factors into consideration when determining whether a plea is
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voluntary. While defendants who are found legally incompetent cannot voluntarily plead guilty,
n96 the two prong test established in Dusky v. United States n97 and used to determine mental
incompetence also fails to take the ability of a defendant to make reasonable decisions into
account. While case law surmises that the defendant's obvious guilt and a large body of
inculpatory evidence are the primary motivators for guilty pleas, scholarly research demonstrates
that there are innumerable environmental and biological factors that influence the decision
making process to varying degrees. n98 The philosophy behind these court decisions is hindered
by a colloquial view of how humans make decisions, and a deeply entrenched philosophical
commitment to viewing human beings as fully reasonable and rational cost calculators who will
seek to maximize pleasure and minimize pain. As we shall demonstrate, this is not always the
case. The assumptions articulated by the various courts of appeal concerning plea bargaining - the
assumption that the decision to plea is made "knowingly and voluntarily," the assumption that the
parties involved will act to maximize their interests, and the assumption that the state and the
defendant are equitable partners to a contractual negotiation - are incompatible with
contemporary neuroscience and social psychology research. n99 In contradistinction to rational
actor models that constitute much of the legal scholarship and case law surrounding the knowing
and voluntary criteria to plea, new scholarship firmly establishes the imperfect decision-making
processes characteristic of human beings. n100 Still, despite decades of solid social scientific
evidence to the contrary, procedural legitimization for the efficacy of plea bargaining continues to
promulgate the mystifying and reifying assumption that human beings are first and foremost
rational cost calculators. n101 As is so often the case the Court finds itself woefully ill equipped
to accommodate application of contemporary social science to the matters before it. This
incompatibility affects most significantly those who are already a statistically significant
population prosecuted by the legal system - those with mental illness, n102 those with a history of
victimization, n103 and those with a history of substance abuse. n104 Recognizing the prevalence
of plea-bargaining and the forfeiture of constitutional rights by a defendant agreeing to a plea
deal, n105 the astonishing lack of interest in application of social scientific insights to the
structural and subjective machinations constituting the process presents as willful ignorance in the
service of prosecutorial mandates. At issue is the Court's determination of knowing and voluntary
as established in Federal Rules of Criminal Procedure, Rule 11, and codified in a line of cases
decided in the 1970s beginning with Brady v. United States and its progeny. E. "Understand and
Assist" or "Reasoned Choice"? In November of 1984 Richard Allan Moran pled guilty to three
counts of first-degree murder and was sentenced to death. n106 Moran had robbed a saloon in Las
Vegas, shooting both a patron and the bartender four times each. n107 He then shot and killed his
former wife and attempted to end his own life by shooting himself in the abdomen and slitting his
wrists. n108 Moran initially entered a plea of not guilty to the three first-degree murder charges.
n109 He was then evaluated by two psychiatrists and found to be competent to stand trial; after
which the state announced its plans to seek the death penalty. n110 Two and a half months later
Moran changed his plea from not guilty to guilty; according to Moran, the change in plea was "to
prevent the presentation of mitigating evidence at his sentencing." n111 Despite being advised by
the trial court of the "dangers and disadvantages" accompanying a decision to waive appointed
counsel and defend himself, Moran chose to waive appointed counsel and defended himself. n112
The court determined based on psychiatric evaluations that Moran's waiver of counsel and
subsequent guilty plea were made knowingly and voluntarily and sentenced Moran to death for
two of the murders. n113 Moran later sought post conviction relief in the United States District
Court for the State of Nevada on the grounds that he was "mentally incompetent to represent
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himself." n114 The District Court denied review. n115 An appeal to the Ninth Circuit Court of
Appeals, however, led to a reversal. n116 At issue was Moran's capacity to knowingly and
voluntarily waive his constitutional rights. n117 The Ninth Circuit held that the lower court had
applied the "the wrong legal standard of competency," contending that the competency to waive
constitutional rights is based upon a higher standard than what is required for a defendant to stand
trial. n118 To stand trial a defendant must demonstrate "a rational and factual understanding" of
the charges and proceedings, and must be able to assist counsel n119 However, to waive counsel
and to plead guilty a defendant must possess "the capacity for "reasoned choice' among the
alternatives available to him." n120 The Ninth Circuit held that the trial court had erred in
accepting Moran's guilty plea. n121 While Moran was evaluated by psychologists and determined
by the trial court to have a "rational and factual understanding" of the court proceedings, and
sufficient ability to consult with and aid his attorney and was therefore found competent to stand
trial, the record indicated that he was not competent to waive his Fifth and Sixth Amendment
rights. n122 The Ninth Circuit affirmed a more stringent mental competency standard for those
confronted with abdication of their constitutional rights, and concluded that due process mandates
that the accused should be evaluated for their capacity "to make a reasoned choice among the
alternatives presented to him." n123 Relying upon its previous opinion in Dusky, n124 in a 7-2
decision the United States Supreme Court reversed the Ninth Circuit Court opinion and held that
the determination of a defendant's competency to forfeit assistance of counsel, and plead guilty, is
only dependent upon the defendant's ability to understand the court proceedings and posses the
ability to consult with and assist their attorney. n125 The "understand and assist" criteria was, for
the Ninth Circuit, too low of a threshold when determining a defendant's competency to abdicate
rights. n126 By rejecting the Ninth Circuit's "reasoned choice" as the standard of mental
competency required to abdicate rights and affirming the "understand and assist" criteria
originally appearing in Dusky, "understand and assist" became the minimum threshold by which
competency is determined. n127 Moran is one such defendant to be denied due process because
of the Court's lack of distinction between decision-making and other executive functions in the
brain. Moran's psychological evaluation indicated that he understood what was happening to him
and why, and was therefore competent to stand trial. n128 His actions, attempted suicide, and
psychological evaluations all establish Moran's extreme depression and complete disinterest in
advocating for himself, and the record shows that he waived his right to counsel for the purpose
of not having mitigating evidence presented on his behalf. n129 There are two significant points
to be made from the outset. First, The Moran decision demonstrates a profound lack of awareness
regarding insights into human decision-making generated by scholars in the natural and social
sciences. Second, legal language is political and legal language is ideological. Embedded in the
language selected by justices in judicial opinions is assumptions about human beings and the
political, economic, cultural, psychological, and neurological effects upon the appropriateness of
their actions. n130 Each of these topics will be taken up in greater detail in Part IV, but in order to
fully appreciate [*1108] the imprudence of applying the knowing and voluntary standard to the
plea bargaining situation it's important to contextualize U.S. Circuit and Supreme Court opinions
on the subject within well-developed theoretical literatures. The "understand and assist" test is a
two-prong test established by the Supreme Court in Dusky V. United States for the purpose of
determining a defendant's competency to stand trial. n131 It requires that the defendant present
""a rational as well as factual understanding of the proceedings against him'" and ""sufficient
present ability to consult with his lawyer with a reasonable degree of rational understanding."'
n132 This standard takes several factors of the defendant's current state of mind into
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consideration for determining competency, including but not limited to a defendant's
understanding of the charges against him, his understanding of the various roles in the courtroom
(e.g. judge, prosecution, defense attorney, police officers, witnesses, experts), his ability to
evaluate the possible outcomes of the trial, and his ability to communicate with his attorney and
aid his attorney with facts from the case. n133 Contrary to the "understand and assist" standard is
the "reasoned choice" standard. Unlike the "understand and assist" standard, which was primarily
crafted to determine fitness to stand trial, the "reasoned choice" standard for determining mental
competency was crafted by the Ninth Circuit Court of Appeals specifically for determining a
defendant's competence to plead guilty. n134 Relying heavily on Westbrook v. Arizona's
differentiation between competence to stand trial and competence to waive assistance of counsel,
n135 in Seiling v. Eyman the Ninth Circuit held that the abdication of constitutional rights when
pleading guilty, specifically the Fifth and Sixth Amendments, mandated a higher standard of
mental competency review. n136 Citing Judge Hufstedler in Schoeller v. Dunbar, n137 the Ninth
Circuit concluded, ""[a] defendant is not competent to plead guilty if a mental illness has
substantially impaired his ability to make a reasoned choice among the [*1109] alternatives
presented to him and to understand the nature of the consequences of his plea."' n138 The Court
continued by saying, "we think this formulation is the appropriate one, for it requires a court to
assess a defendant's competency with specific reference to the gravity of the decisions with which
the defendant is faced." n139 This paper posits that the current "understand and assist" threshold
for determining competency to plea is too limited and devoid of scientific merit. We contend that
of the two options the "reasoned choice" standard provides a more significant level of protection
for those suffering from mental illness and is the more efficacious criteria. Were we to be forced
into choosing from among only these two options we'd most certainly argue strongly for
"reasoned choice." However, as we will make clear in the sections to follow, even the "reasoned
choice" language is confounded by a too limited understanding of how normative decision-
making takes place. As such the matter before us is not solely one of determining substantial
mental impairment, as the Ninth Circuit suggested in Schoeller, but rather, to discern the
complexity of human decision-making more generally, and whether the knowing and voluntary
criteria can withstand social scientific scrutiny when applied to run-of-the-mill plea bargain cases.
n140 As we will demonstrate below, it cannot. We will first discuss the history of mental
incompetency law and the current incompetency standard in the United States. We will then
analyze and refute the arguments made in Godinez v. Moran against employing the "reasoned
choice" standard federally as a constitutional right. Next, we will describe the rationality of the
constitutionality of plea-bargaining as opined in Brady v. United States n141 and the economic
theories that are assumed to be true in the opinion. After, we will describe and refute the
theoretical assumptions made in Brady and explain how they are unworkable within the context
of the "understand and assist" threshold. Finally, we will describe the ways in which the
"understand and assist" threshold falls short of the assumptions made in Brady, and later in
Federal Rule 11, according to sociological, cognitive psychology and neuropsychology research.
But before we begin we want to present a brief conceptual description of our theoretical
approach. It is our contention that for a host of reasons the approach to determination of mental
competency by the courts is too limited to be of any real value when attempting to discern
whether a defendant truly understands and appreciates the gravity of plea-bargaining. Parsing and
deconstructing the concepts - "knowing" and "voluntary" - presents a far more complex and
integrated set of subjective intrapersonal and objective structural relationships that make pro
forma attempts to discern either via application of Federal Rule 11 too simplistic and factually
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discordant with social science. It is to the matter of discerning the far more complex nature of
human decision-making that we now turn.
15
“Plea Bargaining Defined”
Plea bargain definition
Extraordinary Circumstances, https://brooklynworks.brooklaw.edu/blr/vol81/iss3/7/,
The term plea bargain has been defined as "any agreement between the prosecutor and the
defendant whereby a defendant agrees to perform some act or service in exchange for more
lenient treatment by the prosecutor." Michael D. Cicchini, Broken Government Promises: A
Contract-Based Approach to Enforcing Plea Bargains, 38 N.M. L. REV. 159, 160 (2008)
16
Negative
17
Ban Terrible
Banning plea bargaining drives it underground
Frank H. Easterbrook, Chief Judge, United States Court of Appeals for the Seventh Circuit;
Senior Lecturer, The Law School, The University of Chicago, Summer 2013, Duquesne Law
Review, Plea Bargaining After Lafler and Frye: Introduction: Plea Bargaining is a Shadow
Market, p. 551-2
To put this differently, proposals to regulate plea bargaining have the same limitations
and consequences as proposals to regulate commercial contracts. Ban it, and it continues
but goes underground, as in many states before they gradually recognized its legitimacy during
the 1960s and 1970s. Black markets predominate when lawful markets are forbidden--but
black markets are characterized by less information, more fraud, and few guarantees of
voluntary action. Far better to acknowledge the practice and get the terms in writing;
contract law has a Statute of Frauds for very good reason. People are bound to bargain.
Defendants are risk averse and prefer the certainty of a year in prison to a 50/50 or 90/10
chance of a longer term. For many defendants the rights afforded by rules of criminal procedure
have little value at trial but considerable value in trade; they can sell their rights back to
prosecutors by dealing for shorter sentences through a guilty plea. Prosecutors have limited
budgets and want to induce guilty pleas so that they can bring more cases, using the
resources released when they don't have to take each defendant to trial. Both sides gain. So
does society. It's as if there were an invisible hand . . .
Plea bargaining protects mutual interests, banning it is paternalistic

Frank H. Easterbrook*, Chief Judge, United States Court of Appeals for the Seventh Circuit;
Market, p. 551
Plea bargaining is a form of contract, and its regulation through the common-law process is
fundamentally no different from the way courts treat other contracts. People bargain to
advance their view of their interests. We judges must be careful not to override real people's
actual views about their actual interests in favor of what judges think those views and
interests ought to be. We serve best by preventing fraud and ensuring that bargains reflect
voluntary decisions.
18
Reform Counterplans
19
Better to Improve Plea Process

Better to improve the plea bargaining process
Plea Bargaining as Dialogue, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2701413, p 64-
5
(1) Have a different prosecutor for plea bargaining

(2) Institute dialogue with the defendant
Aim for restorative justice Plea bargaining sparks vehement debate among scholars. Some
scholars argue, for various reasons, that plea bargaining should be abolished, and that the criminal
justice system can fare better without this practice. n6 Despite this criticism, the criminal justice
system's dependence on plea bargaining to resolve cases implies that it will constitute a mainstay
of the criminal justice system for the foreseeable future. n7 Any attempt to reform the system,
therefore, should take into account the significance of the practice of plea bargaining. n8
Accordingly, this Article accepts plea bargaining as a given and seeks to improve its
practice. This Article argues that plea bargaining constitutes an opportunity to circumvent the
restrictions that exist during a trial or outside a trial, such as the inadmissibility of character
evidence, and the need for the victim's consent in restorative justice proceedings. This Article
proposes to navigate the plea bargaining process in a way that creates a real dialogue with
defendants. Such a dialogue can reduce the sense of alienation that defendants feel from
their position as a defendant. To accomplish this dialogue, the prosecutor conducting the
plea bargaining negotiations must be a different person than the prosecutor in the trial if
negotiations break down. This Article is presented in seven parts which are described as
follows: Part II centers on a defendant's sense of alienation within the criminal justice system in
general and within the plea bargaining process in particular. Meursault, the protagonist of Albert
Camus' famous novella, The Stranger (or The Outsider), n9 serves throughout this Article as an
example of a defendant who is excluded from his criminal justice process. Part III discusses the
reasons for excluding character evidence from a trial. While justifying this rule, this Part defines
its costs, using the figure of Meursault to exemplify the disadvantages of entering character
evidence into trial. Part IV suggests making room for dialogue within the plea bargaining
process in which a prosecutor, who is not in charge of conducting the trial against the
defendant, would communicate the attitude of the prosecution regarding the seriousness of
the offense, the harm caused to the victim and to society at large, and the prosecution's
initial position on the appropriate sentence. The defendant would then have the opportunity
to present reasons for committing the offense, any remorse, and any feelings regarding the
victim. In addition, the defendant can maintain innocence, assert that the offense committed
or the degree of his culpability is less serious than that of the charge, or point to any
mitigating circumstances. Part V explores the possibility of partially securing the ends of
restorative justice through mutual prosecutor-defendant dialogue. Part VI comes to grips
with possible drawbacks of the dialogue suggestion. Finally, Part VII presents the conclusions.
20
We should fix any problems with plea bargaining, not ban it

Market, p. 553-4
It also seems to me that problems often attributed to plea bargaining have some other
genesis. We need to fix those problems, not the system by which people bargain in the law's
shadow. n7 If defendants have bad lawyers, offer compensation high enough to attract
better quality. If prosecutors overcharge, compensate defendants who prevail at or before
trial, or who have convictions set aside. It is scandalous that our legal system offers fee-shifting
for age discrimination cases brought by over-the-hill salesmen, but leaves persons put upon by
unjustified criminal charges, who vindicate their civil right to liberty, entirely to their own
devices, so that they emerge from the process broken and impoverished. The Equal Access to
Justice Act n8 reimburses defendants if the government brings unjustified civil litigation, but
there's nothing comparable for unjustified criminal prosecutions. n9 Government must do better.
Similarly, if, like Professor Alschuler, you think the plea decision is defective because it was
made in the shadow of abusive prosecutions and Draconian sentences following conviction
at trial, n10 you should fix that problem rather than try to interfere with defendants' ability
to make the best they can of a bad position. Lots of federal judges, including me, support
Professor Alschuler's view that many prosecutions are abusive (think honest-services fraud and
the ways RICO has been stretched) and that statutory minimum sentences are too high. n11 You
will even find that some judges, including me, think that many drugs should be removed from the
criminal law and regulated as tobacco and alcohol are regulated, n12 and that many federal
criminal statutes should be repealed and the subjects returned to the states. It is hard to get
legislatures to reduce penalties, let alone decriminalize swaths of human conduct, but that's where
the effort should lie. Plea bargaining just allows defendants to ameliorate a predicament
beyond their control; n13 defendants cannot be made better off by limiting their options.
Practical reforms to improve the fairness of plea bargaining
Stephanos Bibas, Professor of Law and Criminology, University of Pennsylvania, Duquenes Law
Review, Summer 2013, Plea Bargaining After Lafler and Frye: Article: The Duties of Non-
Judicial Actors in Ensuring Competent Negotiation, p. 626-31
Even if one agrees with Professor Alschuler that plea bargaining is regrettable, it is not going
away any time soon. So, if we are going to focus on preventing the worst bargaining errors, what
can we do (in his words) "to make this less awful?" The ideal approach would be to increase
greatly the funding and quality of defense counsel. But that is, unfortunately, not going to occur.
Reformers have been calling for increased funding for decades, but no changes in support for
those programs have occurred. What can we do in a world of scarce, limited resources within a
strapped and strained system? Let us also take off the table wholesale decriminalization of drug
cases, for instance, to reduce caseloads. I want to work within the roughly realistic world of
changes that are possible right now.
21
Realistically, ineffective-assistance review by judges ex post is no panacea. Ex post review
based on a scant guilty-plea record is not going to catch many errors. But, there are a lot of things
that other actors in the criminal justice system can do to backstop the performance of defense
counsel and thus to prevent and catch errors, at least the most obvious of them. Again, Lafler and
Frye cannot give every defendant a great lawyer or compensate fully for gradations in ability
among counsel, some of whom will be better bargainers than others. The courts will never
overturn convictions or sentences simply because a defendant's bargainer is slightly worse than
another. But, in cases like Frye where the lawyer entirely fails to pass along a plea offer, or
Lafler, where the lawyer gave grossly inept advice, I think there are ways to catch the worst of
those errors, just as health-care professionals catch medical errors.
One of the themes I want to lay out here is that there is much that lawyers can learn from
what transpires in the medical field. Evidence-based medicine is far more advanced than
evidence-based law. Managed care in medicine is more developed than managed care in law. The
ability of organizations to create quality control and procedures designed to catch the most
obvious recurring medical errors is much further advanced in the health-care field than in law.
Simply by borrowing some ideas developed in those areas of health care, the legal system can at
least rein in some of the worst legal errors. So, let us consider different participants in the legal
system apart from judges on habeas review.
First, we need to broaden our understanding of what public defender organizations can do. I
have argued elsewhere that with limited defendant resources, governments get the most bang for
the buck if they concentrate their funding in public defender organizations, as opposed to ad hoc
appointments of people who have not accumulated subject-matter expertise. n8 Jurisdictions that
do not already have them could move towards more use of public defenders. I think that
internally, public-defender organizations could do much more supervision and training of
attorneys. We never think about offering clients second opinions. Before major surgery, health-
care providers will pay for a second opinion. I think that before a defendant takes a major felony
plea, it would not cost much to have a brief consultation with a second lawyer just to make sure
that it is not just one idiosyncratic viewpoint that is leading the accused to go under the legal
knife, so to speak.
I also think that we could learn from the way that doctors treat medical errors and the way
that the FAA treats near misses in airline crashes. What role might there be for retrospective
review of legal errors? Of complaints? Of problems? What about creating feedback loops, to
learn systemically about what is falling through the cracks in a public defender organization, for
instance? A lawyer may make a mistake once, but such a system would re [*628] duce the
chance of repeating the error if supervisors studied the first error and used a feedback mechanism
to catch it. We ought to stop treating this problem primarily as one of bad apples, though there is
room to weed out bad apples. Instead, we should approach it more as a systemic design issue, to
make sure that the internal guidelines guard against similar mistakes the next time a supervisor
has to review and approve this particular kind of plea.
Bar committees and the National Association of Criminal Defense Lawyers can play
constructive roles here as well. Those organizations can develop standards of care in the same
way that insurers in managed medical care developed standards of care. At this symposium,
Professor Ronald Wright talked about numerical standards here that might give one a rough
guideline for what kinds of representation prove effective, based on empirical evidence. n9
22
Defender organizations can develop manuals and training materials. In the medical field, Dr. Atul
Gawande has developed an argument for using checklists. n10 Each doctor, of course, thinks that
his own clinical judgment is superior and that he has an intuitive feel for what care is right. But,
actuarially, professional doctors do make mistakes when they do not follow protocols. Similarly
in the legal field, a simple checklist can help avoid common mistakes.
Software can also help. There is now an iPhone app called CrimQuick that a criminal
litigator can take into Pennsylvania state court and use to look up the statutory crime, its gravity
score, its statutory class, and its statutory maximum penalty. The user can cross-reference it with
a client's criminal-history score and the state sentencing guidelines to derive a guidelines
sentencing range along with the amount of variance allowed for aggravation and mitigation. The
app will not convey everything about the situation, but it will send up red flags in clear cases and
yellow flags in unclear cases. Similar tools could, for example, ensure that lawyers advert to
whether their clients are citizens and, if they are not, could flag whether the charge of conviction
is an aggravated felony triggering mandatory deportation. In this manner, software could catch
some errors, and technology could address much of the routine and most predictable collateral
conse [*629] quences of guilty pleas. Those tools could ensure that defense lawyers explain
collateral consequences to their clients.
Legal second opinions could extend beyond lawyers to include federal probation officers,
who compute presentence investigation reports. Probation officers must calculate likely sentences
and could also summarize the elements required for proof. Judges could even delay acceptance of
pleas, at least in the major cases, so that probation officers would first prepare presentence reports
in time for pleas. Granted, that is impractical in a high-volume misdemeanor court, but for the
most serious crimes one could at least benefit from this modest formal investigation before the
plea.
Sentencing judges could contribute significantly as well. As I said, at least in the most
serious cases, judges can delay acceptance of the plea until ready to combine it with sentencing,
especially if there is going to be a presentence investigation. (That will not always be possible, of
course, in high-volume courts.) At the plea hearing, the judge or the prosecutor could place the
plea offer terms on the record. And, in that fraction of cases where the defendant is barreling
towards trial and has turned down the plea, the judge could hold a pre-trial conference. n11 There
are some judges who are already starting to put the plea offer, its terms, and the defendant's
awareness of the offer on the record, so that defendants cannot later claim regret over their
decisions and manufacture belated challenges to their pleas. I do not think in practice many
defendants succeed in challenging their pleas, but such a process could guard against that danger.
Also, like Professor Alschuler, I favor loosening the rule that, in most jurisdictions, bans
judges from participating in plea negotiations. n12 It is misguided. In a world where prosecutors
hold all the cards, the judge is a real potential check on the power of the prosecutor. And in a
world in which the defense counsel bears the heavy responsibility of performing effectively, the
judge again can be a backstop in making sure that the defendant has heard what the terms are and
at least a neutral prediction of the likely outcomes. One could add a further safeguard: a particular
defendant would remain free to disregard the judge's advice and have his case reassigned to a
different judge for trial. I think that would [*630] also drive the overoptimistic defendant
towards taking neutral advice.
23
Judges could possibly be prompted by the advisory rules committees to create a record at
plea colloquies or pretrial hearings. They could ask defendants whether they had discussed
proposed pleas with their lawyers and whether the lawyer had followed a checklist and advised
him about the applicable sentencing guidelines. Particularly if the parties put the terms of their
agreement, indeed the entire plea agreement, in writing, the judge could ensure that the colloquy
was meaningful, the terms were on the record, and the parties could not later dispute what was
said or what was conveyed.
We could dream about a fundamentally different system, such as an inquisitorial system. In
that scenario, a judge would have a more active role, but that would probably be a bridge too far
in America given our adversarial tradition embodied in the Bill of Rights. That might be a shame,
especially for misdemeanor cases that otherwise receive very little in the way of procedural
safeguards. But a full-blown inquisitorial system is probably impractical in America, at least for
criminal cases.
Sentencing commissions could also assist a great deal. Such commissions could provide
statistical summaries, tabulating the percentages of cases that result in convictions and the
distribution of expected sentences after conviction. Some judges, such as Judge Michael Marcus
in Multnomah County, Oregon, have developed software systems to display the range of similar
charges that have been brought, the results at trial, the convictions, and the expected sentences
post-trial and post-plea. n13 And one could generate vignettes of what the median case looks like,
so that a defendant could compare his case to the typical case. Sentencing commissions could
assist in developing the evidence, graphics, visuals, and lay explanations, so that even a relatively
uneducated defendant could understand very simply that, for example, a trial probably means
seven to ten years in jail afterwards with an 85% probability and that a plea results in four or five
years of incarceration. Some defendants will remain overly optimistic or be risk-seeking
gamblers, regardless of what lawyers and courts do to educate them. But one can at least reduce
the risk and the danger that a defendant's misunderstanding will exacerbate those problems.
There is much that prosecutors can do, particularly in the Lafler and Frye scenario where the
prosecutor wants to negotiate, the defense lawyer wants to negotiate, and everyone wants to
negotiate, and the danger is really that a misunderstanding or miscommunication is impeding the
negotiation. It is more difficult to address in the reverse scenario where perhaps the defendant's
interests are served by not taking the deal. But in the Lafler and Frye scenarios, one can have
reverse proffers, in which the prosecutor sits down with the defendant and says we have these
pieces of evidence, and if the jury sees this material in my experience with a couple of
eyewitnesses and with this physical evidence, you will be convicted and here is the sentencing
guidelines range. It is bizarre, but in my experience clients distrust their appointed defense
lawyers (because, in their mind, a free lawyer must be worth what they paid for him) and trust
prosecutors more. Sometimes, hearing the plain truth from the prosecutor can leave more of a
lasting impression on a defendant. n14
I also think there is room within the prosecutor's office to create a process for a second
opinion or an internal appeal to supervisors, as Judge Jerry Lynch has suggested. n15 But that is
not going to work in run-of-the-mill, low-level misdemeanor cases. The Second Circuit
recognized in the Pimentel case that if the defendant has a plea bargain, the defendant at least has
some ability to predict the sentence. When the defendant does not have a plea bargain but enters
an open or blind plea, however, it is a good practice for prosecutors to send a so-called Pimentel
24
letter to lay out an understanding of how the sentencing guidelines would apply to the defendant's
case. n16 If a Pimentel letter details the likely range of sentences and collateral consequences,
then there is less room for the defendant to misunderstand the applicable sentencing guidelines.
That approach at least provokes conversation between the defendant and the defense lawyer as to
why the defendant would expect to improve upon the prosecutor's prediction by pleading [*632]
guilty without a plea agreement. Such an approach also makes it difficult to claim later that the
applicable sentencing guidelines were never even part of negotiations or not a subject of
discussion. n17
Prosecutors' offices should also require prosecutors to make pleas offers in writing, in plain
English, giving copies to the defendant directly, and putting them into a simple, easily
understandable form. If they took such steps, it would be more difficult for defendants to claim
later that they never received notice. n18
My final point is that the legal profession can learn from the way that health care law
monitors informed consent. The legal system must rely upon attorneys' expert judgment. Health
care law has a series of backstops, aids, and information that helps communicate the risks
involved in various medical procedures and courses of treatment to the patient. A similar
procedure would also effectively contribute to the fairness of plea bargaining. Informed consent
will not solve the problems highlighted by the critics of plea bargaining, and it will not eliminate
the imbalance of power inherent in the system. It would, however, expose the most egregious
misunderstandings. It would further guard against manufactured claims, by establishing a record
up front and forestalling any gross misunderstandings.
25
General Improve Plea Bargaining Counterplans
Other plea bargaining counterplan
Plea Bargaining as Dialogue, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2701413, p. 71
Because plea bargaining is the most common means of satisfying criminal justice, the traditional
functions of a trial should be moved into the plea bargaining regime. Indeed, scholars have
expressed uneasiness at the current format of negotiating a plea bargain, which offers defendants
leniency only in exchange for a guilty plea, impliedly waiving the right to contest the charges and
the privilege against self-incrimination. It has been proposed to expand the format of negotiations
to include the conduct of the trial so that, for example, the defendant would agree to waive some
of the procedural rights granted at trial instead of pleading guilty in exchange for concessions
from the prosecutor. n132 Bibas suggests the interesting possibility of allowing crime victims to
express their feelings and to forgive the offender in appropriate cases through the plea-bargaining
process. Additionally, the victim and the defendant should have the opportunity to meet and talk
during these proceedings, at which time defendants should have the opportunity to manifest
remorse and offer restitution to victims. n133 This suggestion leads to the next advantage of plea
bargaining as dialogue: securing some of the aims of restorative justice without depending on the
victim's attitude toward the defendant.
We should reform plea bargaining to ensure that defendants get adequate

information and are fairly represented
Susan R. Klein, Alice McKean Young Regents Chair in Law, University of Texas at Austin
School of Law, Summer 2013, Duquesne Law review, Plea Bargaining After Lafler and Frye:
Article: Monitoring the Plea Process,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2268096, p. 560-1
Fittingly, on the fiftieth anniversary of Gideon, five members of the Court recognized that
"the criminal justice system is the plea bargaining system." n21 In Frye, the Court held that
defense counsel's failure to communicate the prosecutor's plea bargain to the defendant
constituted deficient performance under Strickland's first prong. n22 In Lafler, the government
conceded that the defense attorney's erroneous legal advice that the penalty imposed after trial
would be better than the sentence offered in the plea deal constituted deficient performance, and
the Court remanded for a [*563] determination as to whether the defendant was prejudiced by
undergoing an admittedly fair trial. n23 The Court has acknowledged that it is fundamentally
unfair for some defendants to receive steep sentence discounts while others pay full price, n24 at
least where defense counsel could have pretty easily obtained the discount for her client, and her
client would have accepted the plea. These two high-profile decisions came on the heels of a
recent mini-revival by the Supreme Court of a narrow swath of ineffective assistance of counsel
claims. n25 They also coincide with some backlash in Congress and state legislatures regarding
coercive pleas and lack of disclosure to defendants, particularly when the specter of convicting
26
the innocent rears its ugly head. Reacting to data on wrongful convictions and noting that these
issues that might be more cheaply and quickly resolved through better flow of information, a few
Senators in Washington and state legislators in my home state of Texas have proposed bipartisan
bills to enforce discovery compliance before a judge can accept a guilty plea. n26 These
legislative proposals combined with public sentiment and these new Supreme Court cases provide
the proper climate to demand that judges monitor the details, contours, and substance of federal
and state plea negotiations, thereby raising the hope of Gideon's opportunities once more. In the
remainder of this essay, I will outline what I believe are our two most promising fixes for the
information and resource disparity that skews our system. I will further justify why I believe that
some reform is essential. My first proposal, similar to a suggestion I made a few years ago, is to
amend the Federal Rules of Criminal Procedure (hereinafter "FRCP") and their state
equivalents to promote adequate discovery and judicial regulation of the plea process. n27
Specifically, at the federal level the Advisory Committee to the FRCP could create new
FRCP 11.1, "Pre-Plea Discovery Conference," that would require a conference between the
judge and both parties prior to entry of a guilty plea. To complement this change, the
Judicial Committee could amend current Rule 11, rename it FRCP 11.2, and add to the plea
colloquy the requirement that the terms of the plea itself be explained satisfactorily before
the judge accepts the plea. Together these suggestions would add a new hearing to the
process and slightly lengthen the current plea colloquy between the judge and the
defendant. Such an additional procedure would still be significantly cheaper, however, than
a full-blown trial. My second suggestion is for the Department of Justice and local District
Attorney's Offices to implement internal guidelines to regulate the timing and content of
plea negotiations and discovery procedures. The incentive for this action is to ensure the
finality of guilty pleas and to stave off potentially harsher legislative or judicial action in
this area. Again this could be done cheaply and without fanfare, giving me reason for mild
optimism at its chances of success. II. New Judicial Rules of Criminal Procedure A.Mandatory
Non-waivable Pre-plea Conference - New FRCP 11.1 My initial suggestion is to mandate a non-
waivable pre-plea offer (or pre-trial, for those rare instances where the prosecution does not
intend to offer any bargain) conference. Such a conference would make transparent and record
the investigation by defense counsel and discovery offered by the federal prosecutors under Rule
16 n28 that both parties engaged in in order to comply with [*565] the newly-imposed
interpretation of effective counsel at the plea negotiation stage. Each state could develop its own
version of such a conference, which should be transcribed if at all possible. The judge might ask
some variant of the questions that follow to the prosecutor and defense attorney. Or, even more
efficiently, these questions could be reproduced on a form to be answered and exchanged
between the parties in advance, leaving the conference as a venue for resolving any contested
issues these questions might raise. n29 The hearing might be conducted by a magistrate in those
jurisdictions concerned with trial judges becoming involved in the plea negotiation process.
To The Prosecutor:
1) Has the government made a plea offer? If yes, is it in writing? [Please submit copy of plea
offer to court.] If no plea deal was offered, please state this fact on the record, or provide date at
which it will be forthcoming. If oral plea offer, please relay general substance of the offer to the
court. If your office has instituted guidelines on plea discounts, does this plea fall within the
general terms for similar cases? If you have guidelines and this plea offer is not within the
27
guidelines, please state the extenuating/mitigating circumstances that take this case outside of
your office's ordinary guidelines. n30
2) Please state when the plea deal expires, or when defendant's acceptance will not be
"timely" for purposes of Acceptance of Responsibility (two point reduction in federal system for
acceptance of responsibility and an additional point for timely acceptance of plea; corresponding
"remorse" discount in state/local systems).
3) Please provide your calculation of the Federal Sentencing Guidelines range (state
sentencing guidelines range, average sentence for similar offense) for each charge in the
accusation. Are there any mandatory minimums or offenses requiring consecutive sentencing?
Please provide the same calculation for the negotiated plea, if you offered one.
4) Are you willing to turn over a (redacted) witness list and Giglio material concerning these
witnesses? n31 (There may be a Jencks Act problem here for federal prosecutors). n32 Would
you like me to conduct (in-camera) a hearing regarding witness safety?
5) Do you intend to offer eyewitness testimony? If so, please provide a description of
procedure of line-up, show-up, etc., including all pictures shown to witnesses. Please include
names of witnesses who were present but who could not identify the defendant or who were not
interviewed.
6) Please turn over copies of any confessions by defendant or anyone else, preferably audio
and video-taped, as required by FRCP 16 (or state equivalent).
7) Will you offer any statements from confidential informants, undercover officers, or
jailhouse snitches? Please provide names and Giglio materials, including records and any
payment or leniency. Please include audio and video records, if any.
8) Have you checked with law enforcement and any other agency involved in this
investigation to determine whether there is Brady material to reveal? n33 If there is Brady
material, please provide timetable for disclosure. If you have any material you are unsure about,
please turn it over to my bailiff for an in camera review.
9) Is there any physical evidence, and were there any DNA, chemical analysis, or scientific
tests done on any physical evidence? Please provide the court a list of what results you have
shared with the defense or explain why the government is unwilling to share any material listed in
FRCP 16 (or the state equivalent).
10) Will any documentary evidence or expert testimony regarding the documentary evidence
be utilized at trial? Please provide the court with a list of documents you have shared with the
defense as required by FRCP 16 (or the state equivalent), or offer schedule of when the
government will disclose such documents.
To Defense Counsel:
1) Have you received a plea offer? Do you have any questions about its terms? Do you have
a counter-proposal for the government?
2) Have you explained to your client your assessment of whether the government can prove
each element of each charge in the accusation beyond a reasonable doubt at trial?
28
3) Have you calculated the possible sentencing exposure your client faces if her case goes to
trial and she is convicted of all charges, and what is that sentence (if different from government's
calculation)? Do you agree with the government calculation of the penalty (the guidelines
sentence, mandatory minimum penalties, and consecutive sentencing requirements) that will be
imposed if your client is found guilty on all charges, and the sentence range that will likely be
imposed if
she signs the negotiated plea the government has offered? (See Prosecutor's response to
question 3).
4) Have you advised your client that the government's plea offer is a reasonable one? If not,
and if it does not interfere with your strategy, would you like to explain on the record why you
believe the offer is an unreasonable one?
5) Please relay any defenses that your client intends to raise at trial that require advance
notice to the government (alibi, insanity, self-defense). n34 Do you intend to share any physical
evidence, witness testimony, or expert or scientific reports concerning these defenses with the
prosecution at this time? Do you wish to share any information concerning defenses at trial over
which your client has the best access to information even though notice to the government may
not be required (self-defense)?
Creating a pre-plea conference is perhaps more politically palatable than either increasing
funding for the criminal defense function or expanding constitutional criminal procedural
guarantees for defendants, as such a conference would not require legislative action, and thus may
escape public notice. n35 Moreover, it would save judicial and party resources that might
otherwise be expended in an attempt to recreate--sometimes years after the fact--the parties'
knowledge and intent during the negotiation process. I suggested something similar in a 2006
article, proposing that federal judges use their newly granted authority over post-trial and post-
plea sentencing from the 2005 Booker case n36 to enforce stricter compliance with, and perhaps
amend, FRCP 11 and 16. n37 I am more sanguine now about change than I was eight years ago.
In 2010, the ABA House of Delegates passed a single paragraph recommending that courts at all
levels conduct a con [*569] ference to discuss discovery obligations, though it provided no
details. n38 The next year, the ABA suggested that all courts disseminate a "Brady checklist" as a
complimentary procedure to the earlier resolution, though it did not provide a sample. n39
Other scholars have more recently made even broader suggestions for judicial involvement.
For example, Professor Sandra Guerra Thompson has very recently proposed judicial gatekeeping
for both eyewitness identification testimony and more generally all "police-generated witness
testimony." n40 Noting that errors in confessions, police informant testimony, and
misidentification by eyewitnesses are the leading causes of wrongful convictions, she suggests
that courts take a more active role in screening such evidence by holding pretrial reliability
hearings. My proposal may make such hearing, where the judge must listen to witnesses and take
evidence, less necessary. The pre-plea conference merely requires the attorneys to list on the
record what information they have provided or intend to provide to the other party, allowing each
party to make a more effective plea decision. For example, a defense attorney can decide after
this conference whether a particular statement showing bias or otherwise refuting a government
witness will sufficiently destroy the credibility of that witness such that it is worth going to trial
29
rather than accepting the plea. Without such information, the defense attorney cannot make a
competent recommendation.
There is ample precedent at the federal level for my proposal. Every few years the Criminal
Rules Advisory Committee to the FRCP proposes amendments. Such seemingly-technical
procedural rules do not garner much attention from Congress or the press, and tend to be enacted
fairly routinely. This committee has amended the FRCP numerous times to comply with new
Supreme Court decisions and to comport with contemporary notions of fairness and justice. For
example, the original adoption of Rule 16 in 1944 noted that discovery is not normally permitted
in criminal cases, but provided exceptions for documents seized by the government. The 1966
amendments explicitly permitted discovery in criminal cases and hugely increased the range and
scope of pretrial discovery in response to then-current academic scholarship, ABA reports, and
Supreme Court and lower court opinions which argued in favor of broader discovery. n41
Changes implemented in the 1974 amendments were to expand reciprocal discovery and provide
the defendant "with enough information to make an informed decision as to plea." n42
Likewise, Rule 11 has been constantly refined by amendment. In 1966 the Advisory
Committee resolved circuit confusion by requiring courts to address the defendant personally in
the course of determining that the plea was made voluntarily. In 1974, the Committee enshrined
Boykins v. Alabama's rule that the defendant must be apprised of those constitutional rights that
she relinquishes by pleading guilty, and in 2007 it altered the colloquy to conform to the Court's
holding that the Federal Sentencing Guidelines are advisory. n43
The Advisory Committee used the amendment process wisely over the last forty-seven years
to resolve lower court disputes and combat undue prosecutorial power. Though the Committee
cannot get too far ahead of the law in proposing changes (or it might run the risk of a
Congressional override), n44 it can and has pushed the envelope a bit in creating fairer
procedures, and Lafler and Frye give it just the right excuse to propose new amendments now.
These conferences will add time and expense to each plea, but because this is the only process
ninety-five percent of these criminal defendants will ever receive, it is not, in my opinion, an
extravagance.
Admittedly, my proposal cannot be as easily implemented in the state systems. It is one thing
to implement rules revisions as a sub-constitutional means of regulating constitutional rights at
the federal level. That task has been delegated by Congress to a Committee composed of judges
and academics. At the state level, many of these rule changes would have to go through
legislative committees, and prosecutors might exercise a "veto" on many of these disclosure
requirements. Moreover, the volume of cases is much greater in the state systems, n45 and this
will of course affect the time and resources involved in adding a conference to every case. There
will be costs associated with accelerating discovery obligations, particularly the requirement to
make efforts to obtain Brady-related material from police, and this may have some effect on the
bargains that are offered and the willingness to adopt such rules. Thus my proposal is more
promising at the federal level, though these federal rules are often used as a model for similar
state rules.
The third question concerning sentencing that the judge will ask each party during this new
conference builds on information presently imparted to defendants in open court, transcribed for
the record, at the Rule 11 colloquy. Pursuant to current Rule 11(b)(1)(M) the judge informs the
30
defendant that in determining defendant's sentence under the particular charges to which
defendant is pleading guilty, she (the judge) will calculate the applicable range and possible
departures under the Sentencing Guidelines; pursuant to Rule 11(b)(1)(H) the judge tells the
defendant the statutory maximum penalty for each charge to which she pleads; and under Rule
11(b)(1)(I) the judge relays any mandatory minimums for charges to which defendant pleas. n46
That information may be too late to be of value, however, as the defendant has already at this
point discussed the matter with his attorney and agreed to accept the deal. More importantly, it
does not provide sufficient information to the defendant or her attorney to make an informed
decision. It does not give the defendant any advice on what the guideline penalty range will
actually be for the charges to which she is pleading (there are many variables in the manual that
can influence this calculation); it does not tell the defendant what the guidelines and statutory
penalty range would be for the additional charges that are being dismissed as part of the plea
(information necessary to determine the potential guideline exposure after a trial if the plea is
rejected); it does not inform [*572] the defendant of the ordinary sentencing differentials
between pleading guilty and going to trial (such as points for remorse). Continuing, it does not
tell the defendant what her defense attorney predicts will be her most likely sentence after plea or
after trial based upon the defense attorney's evaluation of the strength and weakness of various
charges, the probability of a guilty verdict on each, and the characters of the offender, the offense,
and the judge that might influence the eventual sentence.
Simply asking question number three concerning sentencing on the record before to a plea
decision might nip in the bud, or at least more easily resolve, many claims that would otherwise
arise later in a habeas petition. So far, many of the claims under Lafler and Frye (especially the
successful ones) involve a defendant who now wants a trial (if she took a bad plea) n47 or who
now wants the original plea re-offered (if she went to trial and received a higher sentence or took
a plea less generous than the original offer) n48 because the defense attorney miscalculated the
potential sentence. There is no good reason to pay for a wasted trial and then have to reconstruct a
plea offer (that may not be in writing) when we can get this sentencing information out plainly in
advance of either plea or trial through the discovery conference. Likewise, there is no reason to
have to hold a trial, perhaps years after a plea that was later declared to have been entered without
effective assistance of counsel, if we could have determined that the plea was a bad deal at the
time.
My proposal will also force the parties and the judiciary to confront the unresolved timing
issues surrounding constitutional obligations under Brady (when material must be turned over),
and even deeper conflicts regarding the precise content of a prosecutor's disclosure duties (what
material must be turned over). The most common causes of conviction of innocent persons can be
avoided by more thorough and timely discovery. These issues have been ignored for too long. If
the Advisory Committee is uncomfortable resolving these still-controversial issues, then the
conference could be used to make a record of what the prosecutor in that case believes Brady
requires in timing and content, so that the defendant has something concrete to argue at the
conference and at appeal. n49 The ABA has opined that federal and state prosecutors must
disclose exculpatory evidence before a plea agreement is signed. n50 However, the United States
Attorney's Manual does not require federal prosecutors to do so. n51 State prosecutors are left to
wonder whether they need only disclose exculpatory information that consists of admissible
evidence that is so material that there is a reasonable probability that the result at trial would be
different if she had disclosed it (the present test conducted in hindsight and required under
31
Brady), or whether they need to disclose all information (not just admissible evidence) that "tends
to negate guilt," as required by the Model Rules of Professional Responsibility ostensibly
applicable in most states. n52
My proposal applies to all defendants, but will most affect two categories: (1) those who
took a plea based upon erroneous advice who really should have gone to trial or gotten a better
deal (either because they are innocent, or because the government's evidence was not great, or
because they were not being given the same deal as similarly situated defendants), and (2) those
who rejected a good plea offer based upon erroneous advice who really should not [*574] have
gone to trial (the defendants in both Lafler and Frye). n53 If a defense attorney must
communicate the fact of a plea offer to her client, and must give good advice to the client who
rejects the plea (the defendants in Lafler and Frye), than it seems to me that the attorney must
give this same good advice to the over ninety-five percent of her clients who accept the
government's offer. n54 To ensure that this Sixth Amendment right is being complied with for the
first category of defendants, the judge should make certain inquiries before accepting any plea
deal. Was the particular bargain a good one for this defendant? If we can figure out if this was a
bad deal at the conference, the plea can be rejected and a trial date set (or a new plea offered).
Forcing a category one defendant who took a bad deal to wait for a collateral review of her
conviction and sentence based upon an ineffective assistance of counsel claim at the plea stage is
inefficient for all parties, particularly the government, as this review may occur years later and
much of the evidence (in the form of testimony from defense counsel, prosecutors, and witnesses
to the crime) may have been misplaced or forgotten. This will be a difficult case to try if the plea
is overturned.
It also should be preferable from their own viewpoint for the Department of Justice and
District Attorney's Offices to hold these conferences for category two defendants who rejected a
plea offer. If the defendant is successful in showing that she would have taken the plea if properly
advised, then the government wasted a lot of time and money trying a case for nothing. Chances
are that the remedy will be to enforce the earlier plea offer. n55 [*575]
B. Plea Acceptance Colloquy - New FRCP 11.2
My second suggestion regarding amendments to the FRCP is to amend current Rule 11,
which would be relabeled as FRCP 11.2, to add additional information to the Rule 11 colloquy
between the judge and the defendant. n56 State judicial committees would need to amend their
versions of Rule 11 similarly. The judge considering the plea might ask the defendant some
variant of the following additional questions:
To Defendant:
1) Did you receive a written copy of the plea agreement at or sometime after the pre-plea
discovery conference? Do you understand the terms of the plea agreement? If not, would you like
the defense attorney and prosecutor to explain any particular term on the record?
2) Did the expected sentence change from that described to you at the discovery conference?
Are the same mandatory minimum and consecutive sentences you were informed of being
imposed?
32
3) Did you and your attorney receive all discovery from the government that we discussed at
our pre-plea conference? Are there any investigative avenues that your defense attorney did not
pursue despite your request? [Ask defense attorney to explain.]
4) Are you satisfied with your defense counsel, and with the terms of your plea agreement?
If not, why not (be specific)?
5) Has your counsel informed you of possible immigration consequences from this plea? n57
6) Have you been asked to waive an ineffective assistance of counsel claim, and is this claim
included in your agreement? Do you understand that you are waiving [insert
waiver language here; e.g., waiver of right to appeal based upon ineffective assistance of
counsel except where such the grounds for such a claim could not be known by the defendant at
the time she entered the guilty plea]. Did your attorney/another attorney assist you in deciding
whether to accept this waiver?
Federal judges could ask such questions now without waiting for a change to FRCP 11 or its
state equivalent. While not as helpful alone towards rationalizing sentences and separating the
innocent from the guilty as in combination with my Rule 11.1 proposal, such a discussion on the
record would ensure that discovery disclosures were made, and would assist both parties in
reconstructing the plea process in later litigation.
C. Justification for the New Rules

Lafler and Frye give us a new opportunity to monitor the substantive results of criminal
dispute resolution through pre-plea and pre-trial conferences, after we have notably failed to
adequately monitor defense counsel competence utilizing doctrines generated from Gideon and
Strickland, and this is an opportunity we should not squander. I am convinced that providing
information to all parties at an earlier stage will be more successful than our present system
in rationalizing sentences and uncovering innocence. Requiring conferences will be
significantly more successful than a post-Lafler and Frye system that does not insist on
these pre-plea conferences, but instead relies on determining defense counsel competence in
hindsight and without written records. A good part of the reason that my proposals are a
necessary first step towards resolving the inequities noted in the introduction to this essay is that
in our new administrative world of criminal justice virtually all defendants plead guilty, and their
plea bargains are unreviewed and generally unreviewable by any official beyond the prosecutor
who proposed them. There is good reason to doubt Seventh Circuit Judge Easterbrook's statement
in his justifiably famous 1972 article that "plea bargaining is at least as effective as trial at
separating the guilty from the innocent. To the extent there is a difference, negotiation between
sophisticated persons unencumbered by the rules of evidence is superior." n58 While perhaps true
when written thirty years ago, this claim is inaccurate today, and therefore some reform of the
plea process is essential. First, under our present plea system some critical information is never
revealed unless and until there is a trial: for example, a lie or misperception may not be uncovered
until cross-examining a government witness at trial. At the federal level, much information is not
required to be shared under FRCP 16 until immediately before trial or, in the case of Giglio
material regarding government witnesses, not until after direct examination. n59 Thus there
33
might be evidence that would lead to acquittal that would never come to light if a defendant
takes a plea relatively early in the process, as most do. Defense counsel cannot bargain pre-
trial with this in mind, as she has no idea what she is giving away, and is in no position to
demand anything in exchange for potential evidence in any case.
Counterplan – Plea bargain limits and reform, not ban

It is tempting to conclude from this that plea bargaining in any form is unconstitutional.
However, I am not convinced that such a move is either practicable or necessarily compelled by
the logic of the relevant constitutional provisions. A more feasible (though, admittedly, not much
more likely) approach would be for the Supreme Court to indicate its deep unease with plea
bargaining in its current form and articulate a set of constitutional principles according to which
reform of the plea system must be made to conform. The Court could then give states and the
federal government a time-frame within which they must bring their plea practices into line with
the relevant principles. What might these principles look like, and what plea practices would they
sanction?
The answer to the first question is implicit in much of the analysis so far. First and foremost,
any acceptable non-trial charge adjudication system must give prominence to the evidence that
the police and prosecutors have accumulated against those they have charged with crimes. It will
not work to say, simply, that a plea system must be set up so that it is the evidence amassed
against defendants that does the primary work of convincing them to admit their guilt, though this
way of putting things is not too wide of the mark. Those charged with crimes might admit their
guilt for all kinds of reasons that have little to do with the evidence against them and there will
often be little that we can do to [*724] discourage them from doing so. In the face of this variety
of defendants, the key principle governing the state and its evidentiary responsibilities is more
like this: non-trial adjudication procedures must be designed and structured so that we have
reasonable assurance that the evidence the state has against defendants is sufficient, all by itself,
to convince them to enter guilty pleas. If plea procedures are set up in this way, then it will not
matter that some defendants choose to enter guilty pleas for their own reasons, ones having little
to do with the evidence. Manifestly, however, current plea procedures do not give us this
reasonable assurance. Given the rules governing such procedures, we can never be sure whether it
is the evidence that convinces defendants to enter guilty pleas or sizeable sentencing differentials
that do most of the work of convincing them.
Second, we must structure non-trial charge adjudication systems so that some agent or agents
independent of prosecutors and police, in a formal public setting, carefully scrutinize the evidence
against defendants and have the authority to call a halt to all further legal proceedings on some or
all of the charges. This, in effect, is the traditional role of the jury of one's peers. n39 Regardless
of what government officials suspect or believe about individuals' crimes, and in spite of the
evidence they can produce concerning those crimes, the jury can acquit defendants if it is not
convinced of their guilt beyond a reasonable doubt. n40 The role of the jury is not merely
advisory in nature, nor should it be. If trials in which juries play the decisive role in limiting the
power of public officials to mete out punishment do not occur, then some suitable substitute for
them must be found. Current forms of plea bargaining, as we have seen, place too few constraints
on the decisions of police and especially prosecutors to assign legal punishment to individuals
whom they suspect of crimes. Again, though judges in plea colloquies are supposed to
independently review the evidence in support of charges, few observers believe that they do so.
34
Third, the plea system must offer reasonable assurance to the public that criminal charges are
being resolved appropriately and reliably. Current forms of plea bargaining render charge adjudi
[*725] cation largely opaque. n41 Charges are filed, negotiations about facts, charges, and
possible sentences take place off the record, and the outcomes, effectively fait accompli, are
presented to judges at plea colloquies for ratification. Judges presiding over plea colloquies might
have crucial evidence bearing on the crimes committed, or the culpability of the agents who
committed them, withheld from them or shaped by mutual consent of the interested parties. n42
The public, including the victims of the crimes in question, have little ability to monitor this
process or discern why it yielded the outcomes that it did. Granted, criminal trials also involve
some shaping of the evidence by exclusionary or procedural rules. But compared with plea
bargaining, trials are much more transparent charge adjudication procedures. Charges are laid out,
evidence is presented by the state, the defense has opportunities to confront and rebut the
evidence, and summations are heard. Afterwards, juries deliberate and announce their verdicts.
Members of the public might scratch their heads over verdicts, but at least they are in a position
to know what the charges were, what the supporting evidence was for them, and what the
procedure was for accepting or rejecting them as proof of defendants' guilt. n43 In plea
bargaining, by contrast, little is fixed or publicly accessible--not charges, facts, nor the real
process (versus the "show" process of the plea colloquy) that produced the final outcome.
Fourth, non-trial plea adjudication procedures must seek to detect and eliminate trial
penalties. Again, trial penalties are additional increments of punishment assigned post-trial, the
purpose of which is to punish defendants for exercising the right to trial. In my view, we must
distinguish such penalties from lost or foregone waiver rewards. Suppose that a modest waiver
reward scheme is consistent with the three principles articulated above. Individuals who opt to
enter guilty pleas might be granted slight reductions in their deserved sentences in recognition of
their having spared the public the expense of trials. Individuals who go to trial and are convicted
would not receive these rewards but would receive their deserved sentences. They would not be
made to suf [*726] fer further punishment over and above what their crimes merit. Of course,
this account presupposes that we have some way of determining the sentence merited by each
individual and thus the means to distinguish lost waiver rewards and trial penalties. One of the
signal failings of the current system of plea bargaining is that it makes no effort to distinguish the
two, and thus permits the courts (and some of plea bargaining's supporters) to lump the two
together and say that defendants who elect trial adjudication risked longer sentences despite
important differences in the bases for those longer sentences.
What might a plea system that satisfies these four principles look like? Various possible
systems might do so. I will do no more than sketch one of them. There is not the space, here, to
defend it against the alternatives that might be proposed. n44 If we are to have reasonable
assurance that it is the evidence amassed against them that is sufficient to convince defendants to
plead guilty, then it seems clear that we must adopt measures that strictly limit the abilities of
prosecutors (or other state officials) to manipulate the sentencing differential. Setting aside trial
penalties for the time being, my view is that waiver rewards should be kept small--something in
the range of 10% reductions from deserved sentences. There is room for debate about whether
such modest waiver rewards should be fixed or capped, with room under the cap for prosecutors
and defense attorneys to negotiate. n45 For the record, I prefer fixed discounts in order to
minimize the impact of the many extraneous factors affecting sentencing outcomes when
reductions are negotiated. n46 For now, it suffices to insist that waiver rewards must be strictly
35
limited. Doing so will considerably reduce the abilities of prosecutors to attract guilty pleas if
they cannot produce substantial evidence of defendants' guilt. Assuming the elimination of trial
penalties, modest waiver rewards will not offer much sentencing lenity to defendants against
whom the state's evidence is weak. Such rewards will therefore be much less likely to convince
them to waive their right to trial and enter guilty pleas. We will have set things up so that the
evidence has to do most of the work of convincing them, as it should. [*727]
To the preceding, some will object that any proffer of a waiver reward, no matter how
modest or fixed, puts pressure on defendants to waive their constitutional rights. If we want to
devise a scheme that fully values and honors those rights, it must be one that offers those who
admit their guilt nothing in exchange for doing so. At the margins, so to speak, any waiver reward
might be sufficient to convince defendants against whom the evidence is substantial, but not
compelling beyond a reasonable doubt, to forgo trials.
Though I am troubled by this objection, I do not find it quite convincing. First, even a
scheme offering defendants no waiver reward might not eliminate all of the incentives,
extraneous to the evidence, defendants have to plead guilty. There are well-known process costs
of trials. n47 These too might convince some defendants, against whom the evidence is thin, to
cave in and enter guilty pleas--defendants who might have escaped convictions had they pressed
forward with trials. Granted, there might be little we can do to fully eliminate or substantially
reduce some of these process costs. In this way they are unlike waiver rewards, which we could
entirely eliminate. Although process costs are different in this respect, they are not different in
putting some pressure on defendants to admit their guilt and forego trials. Second, and more to
the point, so long as waiver rewards are kept small, I am not persuaded that they would be
significant enough to render the evidence in a case moot. Substantial waiver rewards coupled
with trial penalties clearly tend to do so. Modest waiver rewards in the absence of trial penalties
seem unlikely to convince all but the most timid innocents or partial innocents to enter guilty
pleas.
The much more significant problem, in my view, concerns how to discourage prosecutorial
over-charging and its corollary, charge-bargaining. Any scheme that aims to keep sentence
discounts modest in order to maintain the salience of the evidence in defendants' incentive
structures will be thwarted if prosecutors can routinely over-charge and then offer defendants
charge reductions in exchange for guilty pleas. n48 One type of over-charging, so-called, charge-
stacking, is facilitated by the lengthy and complex criminal codes that have evolved in the United
States. These [*728] codes contain redundant and overlapping offenses and sometimes define
crimes in ways that make it easier for prosecutors to convict suspected offenders of something,
even if not the crimes prosecutors suspect that they have committed. n49 It seems doubtful that
simplifying revisions of such conviction-facilitating criminal codes will be undertaken voluntarily
by state or federal legislators, or that the courts would be willing to demand such revisions.
Prosecutorial codes of ethics could be revised so that they emphatically forbid strategic over-
charging--that is, over-charging with a view to putting pressure on individuals to plead guilty--
and charge bargaining. But the crafting and enforcement of such ethical provisions will prove
difficult, especially since we would not want them to discourage charge adjustments by
prosecutors, understood as alterations in charges by prosecutors in response to emerging evidence
in cases.
36
One possibility would be to require prosecutors to keep records of all charges initially filed
and any subsequent changes made to them and to provide brief, written rationales for the changes.
But who would examine this written record for signs of over-charging or charge bargaining? This
question brings us to the second part of my proposal for reforming plea bargaining. Following the
lead of others, I have proposed that defendants willing to enter guilty pleas should request
hearings before a judge. n50 Before such "settlement hearings" occur, prosecutors would be
required to submit case dossiers in which all charges initially filed and subsequently altered are
detailed. Also, the case dossiers would provide summaries of the evidence supporting any
remaining charges. At the settlement hearing, prosecutors would give brief presentations of the
evidence in support of the charges and defense attorneys would have the opportunity to challenge
that evidence. Settlement hearing judges would also question defendants, who would be expected
to answer, since they have indicated a willingness to admit their guilt. n51 The point of such
questioning would be to find out not only whether defendants fully understand the implications of
guilty pleas but also, and more importantly, whether their [*729] characterizations of their
conduct match the charges to which they are prepared to plead.
Crucially, such settlement hearings would not be understood as serving to ratify plea
agreements already in place between prosecutors and criminal defendants (or their attorneys).
Such agreements would be strictly prohibited, not only because they might conceal illicit forms of
fact, charge, and sentence bargaining, but also because they would have been arrived at through
confidential, and therefore non-public, negotiations. Instead, settlement hearings would have two
primary purposes. First, they would require judges, as agents independent of prosecutors, to
evaluate the evidence (including defendant testimony) and charges in cases, to see whether or
how well they match up. Judges would thereby ensure that there is an adequate factual basis for
the charges. n52 Judges could be encouraged to drop redundant or overlapping charges, as well as
to ask questions about any dropped charges or charges not filed by prosecutors. In that way they
could attempt to ferret out and discourage over-charging and charge bargaining. n53 They might
also advise defendants that though there is some evidence supporting the charges against them, it
nonetheless is, in their opinion, well short of convincing beyond a reasonable doubt. Hearing that
from a judge might embolden some defendants to reject guilty pleas and opt for trial adjudication-
-an option I would leave open for defendants who have requested settlement hearings.
Why believe that judges presiding over such hearings would scrutinize the evidence in
support of charges any more closely than they appear to do during existing plea colloquies? The
answer is that such hearings would not be conducted in a context in which judges were simply
affirming agreements already worked out between prosecutors and defendants' attorneys. Our
current plea bargaining system makes judges passive actors in the charge adjudication process.
When prosecutors and defense attorneys reach plea agreements ahead of time, judges come onto
the scene [*730] rather late in the process. It is understandable why judges might then be
reluctant to upset carefully worked-out settlements by asking too many questions about the
evidence. However, in a plea system in which there would be no such prior negotiations, only
charges filed and evidence dossiers compiled, judges would be confronted with different tasks.
They would not be asked to ratify agreements, but to serve as independent checks on the exercise
of the government's prosecutorial powers.
The active role of judges would be further strengthened by their second crucial role during
settlement hearings. Once they determined which, if any charges, were supported adequately by
37
the evidence, settlement hearing judges would be required to set presumptive sentences on those
charges. n54 Such presumptive sentences would be the ones defendants could expect to receive if,
instead of pleading guilty, they went to trial and were ultimately convicted of the charges. n55
Post-trial alterations in presumptive sentences would have to be justified in writing by the
sentencing judge and would be subject to appeal by both defendants and prosecutors. Such
presumptive sentences would make it difficult for prosecutors or judges to impose trial penalties.
Moreover, defendants would know the worst outcomes they faced if they decided to put the
state's case to the test of trial adjudication. Defendants who decided to go ahead with guilty pleas
at the termination of their settlement hearings would receive modest and fixed sentence discounts
on each charge. n56 Also, once charges were upheld by a settlement hearing judge and
presumptive sentences announced for them, I would prohibit prosecutors from dropping charges
without a further hearing at which the prosecutor would be expected to explain and justify the
decision to do so. This would discourage charge bargaining by prosecutors subsequent to
settlement hearings.
We might also consider giving the victims of crimes, or in their absence, the general public,
some direct role in settlement hearings. The victims of alleged crimes could be invited to such
hearings and questioned by the presiding judge to see whether and to what extent their accounts
of what happened to them correspond with the charges brought by prosecutors. n57 This would
discourage illicit forms of fact and charge bargaining. Since many crimes lack direct victims, we
might appoint (or elect) individuals to serve as public interest advocates at settlement hearings.
Such advocates could be provided full dossiers of the cases to be heard and given opportunities to
speak. Their presence would help ensure the integrity of the process, again by discouraging the
shaping of facts and charges by prosecutors and defense attorneys (and in some cases,
cooperative judges). n58 Settlement hearings would thus offer the public greater assurance that
criminal charges were being adjudicated in a reliable and accountable fashion.
V. Objections and Remaining Problems
Various objections to the proposed reforms can be anticipated. It will be claimed that that the
plea regime I describe will be "inefficient," in the sense that it will complicate and slow the
charge adjudication process and thereby increase its costs to prosecutors, judges, and the public
that ultimately foots the bill for their offices. The Supreme Court has, at times, extolled the cost
savings of plea bargaining, though there is some debate about whether they view those savings as
a positive good in its own right or a saving grace to what is otherwise a lamentable process. n59
Though I do not advocate the elimination of guilty pleas nor insist that all defendants be given
full-on jury or bench trials, I do not deny that the settlement hearings that I propose would slow
the plea process somewhat. Also, frank judicial assessments of the evidence at settlement
hearings and limitations on waiver rewards might increase the demand for jury trials. Though
some Supreme Court justices might regard this increased demand as an alarming prospect, it is
hard to see how such a view squares with the devotion [*732] of the Founders to jury trials. In
particular, more jury trials would educate the public about the criminal law and introduce more
popular sovereignty into the criminal justice system, both of which are values that the Founders
held dear. Further, it is hard to take seriously any "resource savings" argument for the current plea
scheme in a society that arguably squanders huge sums on the imprisonment of too many of its
citizens for too lengthy periods of time. We could allocate more funds to the adjudication of
criminal charges without expanding our criminal justice outlays simply by reducing our excessive
38
reliance on imprisonment. Finally, though "efficiency" is an important value, it is hardly on a par
with the values of procedural and substantive justice, values that are given much more than lip
service in our constitutional tradition.
It might also be objected that so long as judges can be convinced to take more active roles in
ensuring that there is an adequate factual basis for guilty pleas, we need not limit the abilities of
prosecutors to manipulate the sentencing differential. If the concern about contemporary forms of
plea bargaining is that it makes charge adjudication too insensitive to the evidence government
officials have against individuals, then the solution is simply to make sure that the evidence is
sufficiently probative. This could be done by having judges closely scrutinize it; reducing
prosecutors' abilities to induce guilty pleas is not needed.
However, I am not convinced that the two parts of my proposal can be so easily separated.
First, if we permit prosecutors to manipulate sentencing differentials, it seems that we would have
to counter the pressure to plead that this creates by having judges determine that the evidence
meets a higher standard of proof--something approaching the reasonable doubt standard.
Otherwise, there will be cases in which, though the evidence is "adequate," it is far from
convincing beyond a reasonable doubt and it will be the sentencing differential that convinces
defendants to plead. Yet this is precisely the kind of situation that we were attempting to avoid.
The weaker evidentiary standard is defensible only if sentencing differentials are kept small
enough that they exert little pressure on defendants to plead.
Second, suppose that the standard was not changed but that prosecutors were allowed to
manipulate sentencing differentials. Suppose also that a judge determined that there was not an
adequate factual basis for a plea in a given case. What then? Presumably the judge would decline
to accept the defendant's guilty plea, thereby forcing the defendant to go to a trial at which the
defendant would, if convicted, receive the presumptive sentence set by the judge. True, the
defendant might not receive an inappropriate sentence for her crime, but she might receive one
that is considerably longer or otherwise more burdensome than the one proffered by the
prosecutor. This would create a situation in which some, perhaps many, defendants would
reluctantly go to trial when they would much rather plead. It is not apparent why we would want
to create such a system, one that is a more or less inevitable byproduct of permitting prosecutors
to manipulate sentencing differentials. It seems much better to have a system in which we have
good reason for believing that defendants who insist on trial adjudication do so because they
perceive the state's case against them to be weak.
It might also be objected that what I propose does not go far enough in certain respects.
There are tools that prosecutors have been provided, beyond manipulation of the sentencing
differential, that can be exploited to induce guilty pleas. For instance, excessively harsh
sentencing schemes will make those accused of crimes desperate to avoid the worst sentencing
outcomes to which such schemes expose them. n60 Even modest sentence discounts might be
preferred to risking trials at which the full force of such sentencing schemes will be felt--and this
in spite of the flimsy character of the evidence the state might be able to muster against
defendants. Likewise, the changes I propose will do nothing about the kinds of "prosecution-
friendly" provisions of the criminal code that William Stuntz has shown facilitate convictions for
conduct that is only tangentially related to the real misconduct of which individuals are suspected.
n61 Assuming that such provisions are over-inclusive in criminalizing conduct that the state has
no legitimate business regulating except for its serving as a proxy for conduct that is
39
appropriately criminalized, my proposal will [*734] not prevent or discourage prosecutors from
charging individuals pursuant to them. n62
It is possible to concede these two points but nonetheless stick with my proposal. It should
be apparent that even a properly devised plea system can only do so much to limit unjust
punishment in a criminal justice system that over-criminalizes the conduct of its citizens.
Nonetheless, a plea system that considerably reduces prosecutorial discretion, provides more
judicial scrutiny of the evidence, and makes the plea process more transparent accords with
important constitutional values. It cannot nor should not be expected to fix all of the problems
with the criminal justice system.
40
Guidelines Counterplan
Counterplan plan – plea bargain guidelines
III. Executive Action: Creating Department of Justice and District and County Attorneys
Internal Guidelines Regarding Pleas
My second proposal, in addition to or in lieu of amendment the FRCP, is to create internal
guidelines for prosecutors regarding the substance of plea agreements. Prominent scholars have
suggested internal Department of Justice self regulation in other areas, such as prosecutorial
discretion in selecting charges to file, whether to decline a file offered from a law enforcement
agency, and in selecting between state and federal venues where federal sentences are likely to be
longer. n91 The Department of Justice has written policies on these matters in its United States
Attorneys Manual. n92 The problem with these guidelines is that they tend to provide only vague
standards, which do not instruct a prosecutor on the appropriate course of action in a particular
case. Further, there is no effective method of enforcement for these guidelines. There is no
independent cause of action for a defendant who believes the Department has violated its own
guideline, n93 and no teeth in the Court's current test for enforcing rational prosecutorial
decision-making through constitutional or statutory provision. My experience working as a
federal criminal prosecutor is that Assistants do read and attempt to follow internal guidelines to
the extent they can.
Even though clearly not a panacea, having internal guidelines focuses prosecutors' attention
on the subject of the guideline. I believe this kind of internal guidance on plea negotiation might
be more successful than charging guidelines because of the government's interest in preventing
withdrawals of pleas and thus having to try an old case years after the plea was entered, and in
preventing being forced to offer more lenient pleas after winning a guilty verdict at trial. In other
words, the government has a strong interest in maintaining the status quo--pleas once accepted
are final and cannot be withdrawn, convictions after trial are final and cannot be reversed.
Many felony defendants languish in jails or prison at the state and federal levels with little to
do but file habeas petitions. Their trial counsel may no longer be working on the case and
therefore has no stake in whether a defendant wants to withdraw her plea. It is the government
that does not want to be placed in a situation that might require them to try (or re-try) an old case.
While successfully withdrawing a plea is rare, it may become less so after Lafler and Frye, and
this might warrant preemptive action by the government. This is particularly true where the
original trial prosecutor never fully prepared the case because of any early guilty plea. Witnesses'
memories fade, and agents and prosecutors have moved on to other cases. It is more efficient and
just to resolve discovery and deficient counsel issues before a plea or a trial than years later in a
habeas petition.
41
Thus it might be to the government's advantage to officially record the plea deal and its
sentencing consequences, and to explain when the deal expires and what penalties are mandated
both with and without the plea. The government might even wish to send this in writing to the
defense counsel, and copy the court. It may make sense to develop written internal guidelines for
what a case is "ordinarily" worth, so that a particular defendant cannot claim that her deal was
substandard. The prosecutor may then establish on the record any aggravating or mitigating
circumstances of the defendant's criminal conduct that might affect her sentencing [*589] and
charge recommendations. The prosecutor may also wish to hear from the defense attorney
concerning the personal characteristics of her client (for example, is she supporting children?
What is her criminal history? Does she have medical issues best addressed outside prison? Does
she have substance abuse problems that can be remedied? Is she employed with community ties?)
that might effect the government's willingness to dismiss charges or agree to a particular
sentence.
The Department of Justice has long provided a lengthy but rather general section of the
United States Attorneys Manual devoted to discovery. This section was amended in 2010 to be
more defendant-friendly in direct response to congressional inquiries concerning various Brady
breakdowns in federal high-profile cases. n95 It now requires the government to disclose not only
Brady material, but all information that is "inconsistent with any element of the crime" or that
"casts a substantial doubt upon the accuracy of any evidence," even if this information is "not
itself admissible evidence" in "sufficient time to permit the defendant to make effective use of
that information at trial." n96 Of course this does not resolve the critical timing issue of whether
such material must be delivered before a plea, and, unfortunately, as discussed in Part IIC, Brady
waivers are becoming more frequently sought in plea negotiations. Nonetheless, the Department
of Justice significantly improved the discovery section of the Manual, and in a January 4, 2010
memorandum from Dept. Att'y Gen. David Ogden, created a Department working group that
established Brady and Giglio coordinators in each United States Attorneys Office. n97
This fast and significant response demonstrates that the Department would much rather
regulate itself than wait for Congress to do it for them. n98 The Department officially opposes the
Fairness in Disclosure of Evidence Act of 2012, another congressional enactment that came as a
response to a Brady violation. n99 This bill would resolve both the Brady timing issue and the
Brady content issue in favor of defendants. The potential enactment of the FDEA gives the
Department even more incentive to get its own house in order so that Congress is not forced to do
it.
Likewise, state officials would prefer to police themselves rather than wait for a legislative
response. For example, Texas prosecutors and law enforcement officers have publicly responded
to media reports of exonerations. The Waxahachie Police Department enacted policy 2.005 on
April 16, 2012, which provides for Brady obligations close to the broad ABA rules, mandates
disclosure by officers to prosecutors, and provides for officer training and discipline for failure to
disclose. n100 The Texas District and County Attorneys Association ("TDCAA") conducted a
study in response to a Northern California Innocence Project Report which criticized Texas for
numerous Brady violations and other instances of prosecutorial misconduct over the last five
years. n101 The TDCAA published the findings of its study in a thoughtful report, has stepped up
Brady and ethics training for newly-elected prosecutors, and is considering supporting some
version of the new Texas discovery bill. n102 As state officials are given the incentives and the
42
opportunity to self-regulate and thereby reduce expensive trials and incarceration, the possibility
of rule changes that encourage the equal treatment of offenders and the reliable acquit of the
innocent grows.
43
Brady Application
Counterplan – apply Brady to plea bargaining
Gerard Fowke, JD, Georgertown, 2013, American Criminal Law Review, Material
To Whom?: Implementing Brady's Duty To Disclose At Trial And During Plea
Bargaining,
http://heinonline.org/HOL/Page?handle=hein.journals/amcrimlr50&div=23&g_sent
=1&casa_token=, p. 575-83
The only eyewitness had told the FBI that the murderer was light-skinned and had a
moustache. n1 Calvin Bibb had never worn a moustache, and even the U.S. Attorney prosecuting
him for murder-for-hire wouldn't call him "light-skinned" in open court. Bibb needed the FBI
report recording the eyewitness's statements, and he needed to know where he could find the
eyewitness so his attorney could interview her. Invoking Brady v. Maryland, n2 Bibb moved to
compel the government to disclose this evidence. The U.S. Attorney acknowledged the
government's constitutional duty under Brady to disclose evidence favorable to Bibb. But the
U.S. Attorney minimized that duty, emphasizing that such evidence only needs to be disclosed if
material. And evidence is only material if it has a "reasonable probability" of changing the trial's
outcome. n3 Not only did the Department of Justice have plenty of circumstantial evidence
showing that Bibb had murdered Gerald McCoy for $ 2500; his co-conspirator was testifying
against him as well. The U.S. Attorney did not think there was the slightest chance, much less a
"reasonable probability," that impeaching the eyewitness--who was drunk and scared when she
saw Bibb shoot McCoy--would change his "slam-dunk" guilty verdict into an acquittal. Hence,
the evidence was not material. The government had no duty to disclose it under Brady. The
district court found the "reasonable probability" test problematic. Developed for appellate review,
the test was too speculative to use in an ongoing trial. It is impossible to predict how witnesses
will testify, how the judge will rule on the parties' motions, and whether the jury will ultimately
find guilt. n4 And if Bibb's verdict was unpredictable, how Bibb's verdict might be affected by
eyewitness [*576] statements about the murderer's moustache and his light skin was even more
so. Hence, the district court held that the government had to disclose all evidence favorable to the
accused. After a two-week trial, Bibb was acquitted. Few trial courts have adopted the Bibb
court's approach. n5 Most follow one of two other approaches. Trial courts taking the
"postconviction" approach hold that Brady violations can only be raised after a conviction. n6
The government has a duty to disclose favorable, material evidence during the trial, but that duty
is only enforceable if the accused is convicted and raises the issue on appeal. Trial courts using
the "speculative" approach hold that the "reasonable probability" test applies during trial itself: if
the evidence has a "reasonable probability" of changing the verdict, the court orders disclosure.
n7 But when the duty to disclose is made to rely on a postconviction remedy or a speculative trial
outcome, Brady's constitutional principles are diminished, impairing the accuracy and legitimacy
of the criminal process. The massive scale of American criminal justice--more than 1.5 million
adults are incarcerated n8--underscores the seriousness of these consequences. But none of this is
inevitable. The fairness of our system of criminal justice depends, in part, on enforcing a
44
duty that already exists. When the accused has not been convicted, courts must enforce
Brady by compelling the government to disclose all evidence favorable to the accused,
without reference to probabilities, "reasonable" or otherwise, and without regard to its
potential impact on the outcome of the proceedings. Brady's constitutional duty applies with
equal force during plea bargaining, after indictment, and during the trial itself. My
argument is as follows: Part I examines the Brady v. Maryland decision. "Materiality" in Brady
does not entail speculation; it is defined by the basic laws of evidence. And taking the power to
decide what must be disclosed away from prosecutors and giving it to judges so they can make
trials fairer is part of Brady's design. Part II looks at decisions interpreting Brady. The
development of the "reasonable probability" test, when considered next to the doctrines that it
was derived from and developed alongside--harmless-error review and prejudice--shows that, like
those doctrines, it applies only during postconviction review. Part III fast-forwards to the
current state of criminal justice in the United States, which is dominated by plea
bargaining. At first it seemed like Brady's passageway [*577] to plea bargaining was obstructed
by United States v. Ruiz. n9 But recently the Court has taken a more realistic approach to plea
bargaining, moving away from Ruiz's efficiency-oriented, contract-based model and towards
treating the plea bargaining process as an informal, pervasive mode of adjudication that must be
regulated. And plea bargaining will never discard its unconscionable reputation without the help
of Brady's duty to disclose, so Brady's broad application is inevitable. Part IV looks at
prosecutors, confronted with their own cognitive biases, amplified by their discretionary
power, thwarted by the formless "reasonable probability" test, trying but failing to satisfy
their constitutional obligations under Brady, and convicting innocent people as a result.
Part V solves the problem by implementing Brady with a constitutional decision rule that
defines materiality according to evidence law and holds prosecutors accountable with
minimal judicial effort. Constitutional norms are best implemented by rules adapted to
particular decisionmaking environments--here, the plea-bargaining and trial processes.
Part VI concludes that, contrary to the assertions of some commentators, applying the
"reasonable probability" test before conviction is not ordained by precedent. Indeed, my
solution is more consistent with Brady, more consistent with judicial economy, and more
consistent with fairness. Throughout, I am guided by the principle that "justice suffers when any
accused is treated unfairly," n10 but my primary purpose is pragmatic: to give trial judges the
strongest foundation, in law and in policy, to broadly implement Brady's duty to disclose,
ensuring fairness for all accused of crimes, whether they are plea bargaining, awaiting trial, or
being tried. I: BRADY V. MARYLAND: "NOT TO ACHIEVE VICTORY, BUT TO ESTABLISH
JUSTICE" This Part is a close reading of the Supreme Court's Brady v. Maryland decision.
Section A covers the essentials: the facts of the dispute, the legal issues lurking in the
background, the basic principles staked out by the Court, and, of course: Brady's holding. Section
B hones in on a single element--materiality. What's material and what's not would prove to be an
enduring source of controversy, but it was not controversial to the Brady Court, which was
simply referencing evidentiary laws every litigator is forced to memorize. Section C argues that
Brady's holding is a constitutional rule that allocates power away from prosecutors and towards
the courts to better implement the principles of fairness underlying the Brady decision. [*578] A.
From Deception to Fairness: Brady's Facts and Brady's Holding The government confronts a
person accused of a crime as an adversary, not an equal. While the government's authority and
resources overwhelm the rich and poor alike, n11 the endemic poverty of criminal defendants n12
makes for an especially stark disparity. n13 This imbalance is reinforced by the adversary system,
45
which entrusts the production of evidence to the adversaries themselves. n14 Unlike a private
party, the government can offer witnesses monetary rewards and promise testifying suspects
immunity. n15 Along with its superior resources, this ensures that the government has more
persuasive evidence. n16 This power over evidence creates the potential for abuse. There were
few safeguards against such abuse until the middle of the twentieth century, when the Supreme
Court, in a series of terse opinions, prohibited the government from using testimony its
prosecutors knew to be perjured or false. n17 This false testimony violated due process by
making the trial a "contrivance" where the government convicted the accused through "deliberate
deception." n18 These decisions, while laudable, did not create balance or fairness. While false
evidence could not deliberately be used against the accused, genuine evidence that exculpated the
accused could still be withheld. The focus was on the government's wrongdoing, not the nature of
the evidence itself. Brady v. Maryland reversed that focus: wrongdoing was secondary to whether
the undisclosed evidence was favorable to the accused. John Brady's trial had been unfair, not
because the prosecutor had done any wrong or deliberately deceived him in any way, but because
the prosecutor had not disclosed evidence that was favorable to him--his accomplice's confession.
n19 [*579] John Brady and his accomplice Donald Boblit had both confessed to lying in wait for
their friend William Brooks, knocking their friend unconscious, stealing their friend's brand-new
Ford Fairlane, and hiding their friend's corpse deep in the woods, but each blamed the other for
actually choking the life out of their friend William Brooks. n20 This finger-pointing did not stop
the trial court from sentencing them both to death. Nor did it stop the Maryland Court of Appeals
from upholding those sentences. n21 But then the proceedings took an unexpected turn. Poring
over trial transcripts for anything that might bolster his client's application for clemency, John
Brady's lawyer uncovered Donald Boblit's confession to killing William Brooks. n22 Although
Brady's only defense had been his accomplice's culpability for the actual killing, and although
Brady had accordingly requested all of his accomplice's statements to the police and prosecution,
the government had still withheld the confession. n23 So Brady appealed. The Maryland Court of
Appeals held that suppressing the confession violated due process. n24 Presaging the later
Supreme Court decision, its holding was based on the confession's exculpatory nature. n25 But
the court reasoned that, even had the jury considered the confession, it still could not have found
Brady innocent. He would get a new trial, but the new jury would not consider his guilt, only his
punishment. n26 John Brady could fight for his life, but he would be unable to assert his
innocence. He petitioned for a writ of certiorari. The Supreme Court held that restricting the trial
to the only issue on which the confession was admissible, John Brady's punishment, was
constitutional. n27 This issue, however, was ultimately peripheral to Brady v. Maryland's legal
significance. More important, the Court affirmed the state court's ruling that suppressing the
confession violated due process. n28 While convicting the guilty is important, society benefits
most "when criminal trials are fair." n29 Hence, the criminal justice [*580] system best serves the
public when it aims "not to achieve victory but to establish justice." n30 The government has an
affirmative duty to treat any person accused of a crime with fairness; when the accused suffers,
"justice suffers." n31 Accordingly, when there is evidence that tends to prove the accused may be
innocent, or evidence that tends to lessen his punishment, the government--regardless of its
complicity or blamelessness, regardless of its knowledge or ignorance, regardless of its malice or
benevolence--cannot withhold that evidence and conduct a just trial. n32 The jury may have
spared John Brady's life had it heard his accomplice's confession; hence, when the confession was
withheld, his trial ceased to "comport with standards of justice." n33 Writing for the Court,
Justice Douglas took these principles of fairness and used them to fashion a new constitutional
46
holding: We now hold that the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution. n34 The government's
intentions are irrelevant; the nature of the evidence determines whether it must be disclosed. By
giving the accused a right to evidence of his innocence, Brady diminishes the government's
evidentiary advantage, making for a fairer system of criminal justice. B. Putting Brady Material
in Context Unlike other elements of the Brady holding, which have been interpreted broadly, n35
the requirement that evidence be "material either to guilt or punishment" has been given a
restrictive gloss by later decisions. n36 Brady's definition of "material" puts these interpretations
in context. [*581] Although usage has grown looser, the term "material" comes from the law of
evidence, where its meaning is precise. n37 As one of the two elements of relevance, "material"
means "legally consequential," and requires only that the evidence relate to a legal issue raised by
the case. n38 The other element of relevance, "probative value," gauges significance or
persuasiveness; materiality simply keeps the focus on the legal issues. n39 The Brady opinion
uses "material" as defined by the law of evidence. n40 Brady's holding retains the term from the
state court's ruling, n41 and the opinion defers to the state court's application of its ruling to the
facts, n42 where "material" means "legally consequential." Evidence law guided the state court's
reasoning: suppressing the confession violated due process because it was likely admissible and
may have led the jury to impose a lighter punishment; however, Brady had admittedly
participated in the crime, so the confession had no legal bearing on his guilt. n43 The focus is on
whether the evidence relates to the legal issues. The Supreme Court also defined "material"
according to evidence law, deferring to the state court's reasoning and pointing out two cases
stating "the correct constitutional rule," both of which hinged upon whether the evidence related
to the law. n44 That the Brady opinion uses "material" in its evidentiary sense, of course, does not
make later, divergent interpretations wrong; the law is always changing. But these interpretations
must be understood against the background of Brady's reliance on the law of evidence. [*582] C.
Fairness and the Allocation of Power: Brady as a Constitutional Rule Terms like "material" are
critical because Brady's holding is a constitutional rule. As such, Brady's holding implements its
principles in two ways. First, it extends Brady's guarantee of fairness to all accused of crimes,
including those yet to be convicted and those still bargaining with the government over pleas and
charges. Second, to ensure that its principles are realized, the Brady rule allocates power away
from prosecutors and to the courts. Admittedly, calling a judicial holding a rule is tautological:
every holding is, at the very least, a rule that a similar case be decided similarly. n45 But many
constitutional holdings are rules in a stronger sense; n46 Brady's specificity makes it this kind of
strong rule. n47 A strong rule specifies facts that trigger a consequence. n48 With Brady, those
facts are the suppression of certain evidence; that consequence is a constitutional violation. Rules
also govern the future, so the triggers must be general categories: "an accused," not "John Brady."
n49 Brady's purposeful categories suggest a literal interpretation. n50 It is directed at a small
class, "the prosecution," whose members will know the rule and recognize terms like "material"
from the law of evidence, due to their legal training. And as skilled lawyers, prosecutors would
also realize that suppression itself violates the Constitution; nowhere does Brady specify that the
accused must be convicted of a crime, or even formally charged with one. Rules allocate power.
n51 The prosecutor's unchecked power to decide what to disclose was unfair to the accused
because the prosecutor's judgment was biased by her adversarial role. n52 Judicial norms
encourage neutrality, so judges are better than prosecutors at deciding what must be disclosed.
Because both are public servants versed in legal discourse, a legal rule like Brady's holding aligns
47
the prosecutor's practice with the judge's views. n53 By allocating power from the prosecutor to
the court, Brady implements n54 its principles of fairness. n55 II. BRADY DOCTRINE AND
THE DEVELOPMENT OF POSTCONVICTION MATERIALITY This Part charts the
development of Brady doctrine. Section A looks at the earliest Brady decisions, noting the
confused, conflicting interpretations coming from all points along the judicial hierarchy, from the
lowest trial courts all the way to the Supreme Court. Section B examines the unusual United
States v. Agurs decision, which was limited in scope, but nonetheless caused a seismic shift in
Brady doctrine. The standards rejected by the Agurs Court--harmless-error review and the newly-
discovered evidence standard--reveal more about the Court's reasoning than the demanding
materiality it actually adopted. Section C discusses United States v. Bagley, focusing on its
complex relationship with Strickland v. Washington, which governs claims for ineffective
assistance of counsel. A. Early Brady: Enforcement, Finality, Impeachment, Finality The
Supreme Court would not return to Brady v. Maryland for another nine years. n56 In the
meantime, Brady perplexed lower courts, n57 leading to a variety of approaches. n58 The
prosecutor's duty to help her adversary was in tension with the [*584] adversary system, making
Brady difficult to enforce. n59 And because most Brady claims arise after conviction, n60 not
only must the burden on the government be balanced against the rights of the accused, but
society's interest in the finality of convictions must also be taken into account. n61 The problem
of enforcement occupied trial courts, while appellate courts were more concerned with finality,
leading to different applications of Brady before and after the conviction, even at this early stage.
While a handful of trial courts held that Brady claims could only be raised after a conviction, n62
most trial courts interpreted the duty to disclose expansively n63 and defined "material"
according to the law of evidence. n64 Trial courts also tried to make Brady more amenable to the
adversary system: for example, one trial court required the prosecutor, when she withheld
evidence, to notify the accused and generally describe what was withheld. n65 Then, if the
accused moved for disclosure, the court would inspect the evidence in camera. n66 This scheme
enforced Brady with minimal judicial involvement. Appellate courts were more focused on the
finality of convictions. Still, some interpreted Brady broadly: for example, several courts
dispensed with the request requirement. n67 Other appellate courts restricted Brady: instead of
using "material" in the evidentiary sense, these courts analogized a Brady appeal to a motion for a
[*585] new trial based on newly-discovered evidence, n68 which is only material if it would
probably result in acquittal. n69 None of these issues were resolved by the two very different
Brady cases the Supreme Court decided in 1972, although the Court did provide some indication
of where Brady doctrine had been, and where it was going. Giglio v. United States clarified that
Brady applies to impeachment evidence, n70 establishing continuity with Brady's fault-based
precursors. n71 In contrast, Moore v. Illinois stated that there is "no constitutional requirement
that the prosecution make a complete and detailed accounting to the defense," disposing of any
notion that Brady provides for broad discovery. n72 The Moore Court also made a fact-intensive
inquiry into materiality, seemingly departing from Brady's evidentiary standard, but not saying
what it meant by materiality. n73 The next two cases would try to redefine Brady by redefining
materiality. B. United States v. Agurs: Never Harmless, Rarely Material United States v. Agurs
n74 marks the first major shift in Brady doctrine. The decision rejected harmless-error review and
emphasized the duty of the accused to request evidence with specificity. n75 Without such a
request, Agurs imposed a demanding materiality requirement. n76 After a tryst in a cheap motel,
Linda Agurs stabbed James Sewell to death with his own knife. n77 At trial, the prosecutor
depicted her as a prostitute who killed her john when he caught her emptying his wallet; the jury
48
found Agurs guilty of second-degree murder. n78 Her self-defense claim might have stood a
better chance if she had known of Sewell's history of violent criminal convictions. n79 But her
counsel had mistakenly thought Sewell's convictions would be inadmissible, so he did not request
his criminal record. n80 He had, however, made informal [*586] arrangements with the
prosecutor, who had agreed to disclose any admissible evidence. n81 When Agurs found out
about Sewell's criminal record, she appealed. Noting that the trial judge had reassured her counsel
that the U.S. Attorney "always provided [the] defense with all discoverable material," the D.C.
Circuit reversed her conviction, finding the significance of Sewell's criminal record overcame
"any lack of diligence" on the part of Agurs's counsel. n82 Writing for the Supreme Court, Justice
Stevens focused on the absence of a specific request for evidence, n83 an issue that had divided
lower courts. n84 Such a request gives the prosecutor notice; otherwise, the duty to disclose
"must derive from the obviously exculpatory character" of the evidence itself. n85 The lack of
notice put the evidence outside of Brady's general rule; there was still a duty to disclose, but for
nondisclosure to warrant reversing a conviction, such evidence needed to meet a higher standard.
n86 The Court then proceeded to analyze and reject several possibilities before settling upon the
standard to govern post-conviction relief for the nondisclosure of evidence the accused had not
specifically requested. The Court rejected harmless-error review, n87 a doctrine that preserves
finality by "guarding against needless reversals." n88 If an appellate court finds an error
"harmless," it is admittedly an error, but the conviction is nevertheless upheld. n89 Even a
constitutional error can be "harmless" if the government proves beyond a reasonable doubt that it
did not contribute to the conviction. n90 When criminal defendants' constitutional rights are
violated, harmless-error review safeguards the finality of their convictions; n91 however, to avoid
making nondisclosure "automatic error," the Court found that the accused needed to bear a
"higher burden." n92 The Court also rejected the standard for newly-discovered evidence, which
is only material if it "probably would have resulted in acquittal." n93 If the same standard applied
whether the evidence was in the government's possession or discovered through a neutral source,
the Court reasoned, it would marginalize the prosecutor's duty to "serve the cause of justice." n94
The Court, however, still made establishing "material" evidence more demanding than simply
showing its relation to a legal issue raised by the case. The "overriding concern" with the verdict's
justice needed to be reflected in the "standard for materiality." n95 So, evidence not specifically
requested by the accused is only material if it "creates a reasonable doubt that did not otherwise
exist," reflecting the standard for a finding of guilt. n96 This inverted harmless-error doctrine by
shifting the burden from the government to the accused. Instead of the government proving
harmlessness beyond a reasonable doubt, the accused had to prove that evidence would have
created a reasonable doubt. Sewell's record did not create any reasonable doubts; the Court
reversed the D.C. Circuit and upheld Agurs's murder conviction. n97 C. Probabilities and
Prejudices: Bagley's Close Relationship to Strickland United States v. Bagley remains the legal
standard for reversing a conviction for a Brady violation: there must be "reasonable probability"
the evidence would have changed the verdict. n98 The Court derived this standard from the
limited holding of Agurs n99 and applied it to all postconviction Brady claims; however, it did so
in a roundabout way. Before making its way to Bagley, the Agurs materiality standard served as
the template for Strickland v. Washington's prejudice element. n100 When counsel is ineffective
and underfunded, n101 trials are unfair; Strickland set the constitutional standard for such
ineffective assistance. Under Strickland, the defendant must first [*588] prove his counsel's
assistance was not reasonably effective. n102 Then he must prove prejudice by showing a
"reasonable probability" that the ineffectiveness changed the outcome of his trial. n103 When
49
formulating Strickland's prejudice element, the Court turned to the Agurs holding, because (1) it
made materiality an element of the right itself; and (2) it placed the burden of proving materiality
on the accused. Making prejudice an element of Strickland, like materiality is of Agurs, let courts
avoid the time-consuming reasonable-effectiveness inquiry by disposing of claims on prejudice
alone. n104 Strickland similarly appropriated the way Agurs shifted the burden to the accused.
The prosecution's control of the evidence defines an Agurs violation, so only the difficulty of
forecasting how the defense might use evidence can justify shifting the burden. n105 But
Strickland violations are caused by defense counsel, whom the government cannot control; n106
it is easier to justify placing the burden on the defendant. n107 These features of Agurs
materiality were particularly well-adapted to preserving finality in the ineffective-assistance-of-
counsel context, so the Court adapted Agurs materiality to define Strickland prejudice. n108 In
United States v. Bagley, the Court found "the Strickland formulation of the Agurs test for
materiality sufficiently flexible" to cover all postconviction Brady violations, regardless of
whether the accused had requested the evidence: The evidence is material only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A "reasonable probability" is a probability sufficient to
undermine confidence in the outcome. n109 Bagley's facts were similar to other cases where
impeachment evidence had been suppressed: the accused, who was convicted of narcotics
violations, had requested any inducements given for testimony, but the government did not
disclose that its primary witnesses had been paid off. n110 So the new standard was not a
response to changed circumstances. Instead, it had two purposes: First, a universal postconviction
standard for Brady violations was easier to administer. n111 Second, because Brady was "a
limited departure" from the adversary criminal trial, the standard needed to depend on the fairness
of the trial that produced the verdict. n112 On the Supreme Court, a consensus quickly developed
around Bagley materiality as the correct standard for postconviction review of Brady violations.
n113 In Kyles v. Whitley, the Court clarified that a finding of Bagley materiality, like a finding of
Strickland prejudice, makes harmless-error review redundant: if a constitutional violation had a
"reasonable probability" of changing the verdict, it "necessarily entails" that the violation could
not have been "harmless." n114 This confirms what the intertwined "development of the
respective governing standards" n115 for harmless-error review, Strickland prejudice, and Bagley
materiality suggests--all three standards are analogous. n116 And when a person has yet to be
convicted of a crime, relief for a violation of his constitutional rights cannot depend upon whether
the violation has a "reasonable probability" of changing a verdict yet to be rendered, any more
than such relief could depend on whether the violation was "harmless." n117 Just like harmless-
error review and Strickland prejudice, Bagley materiality preserves finality in the context of
postconviction review, a consideration with no relevance before the conviction. [*590] III. "A
SYSTEM OF PLEAS, NOT A SYSTEM OF TRIALS": BRADY, FAIRNESS, AND PLEA
BARGAINING The Court has recently realized just how important a fair, well-regulated
plea-bargaining system is to modern criminal justice, so Brady must apply to plea
bargaining. If not, Brady will fade into irrelevance and plea bargaining will become less
accurate and less fair.
50
Court Monitoring Counterplan
Courts should monitor plea deals
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. 1272-3
In the American adversarial system, those citizens--innocent and guilty alike--who are accused of
committing a crime are provided constitutional safeguards to prevent arbitrary, discriminatory, or
otherwise unjust enforcement of the law. Unfortunately, however, most criminal defendants do
not have the time, sophistication, or resources to stand resolute on their rights in the face of the
United States of America. Therefore, even with copiously full dockets, it is incumbent upon the
judiciary to maintain its role as arbiter of justice and fairness. Because plea bargaining is the
predominant method for disposing of criminal cases, it is critical that there be comparable levels
of judicial oversight and consideration as there would be in a public trial. Courts should not
abandon their impartiality in order to free up the docket. When a criminal defendant pleads guilty,
waives his right to appeal, and nevertheless appeals, a federal court must determine whether the
waiver is constitutionally valid and enforceable. If so, the court should dismiss the appeal absent
demonstrable injustice to the defendant. Only in the extraordinary cases where it is clear that the
defendant's motion was frivolous or filed in bad faith or with dilatory intent should the courts be
vested with the authority to release the government entirely from its obligations under the plea
agreement and return to the status quo ante. Otherwise, the lack of judicial oversight and
appellate review could easily open the door to governmental abuse in the plea bargaining process.
Constitutional rights could be ignored indiscriminately, and the general public may lose faith in
the government, thereby depriving the criminal justice system of its legitimacy. Defendants
should certainly not be permitted to waste judicial resources with impunity, but judicial economy
should not be achieved through prosecutorial extortion that undermines defendants' constitutional
rights.
51
Offset Prosecturial Advantage
Counterplan – Measures to offset unfair prosecutorial advantage
Jacqueline L. Schreurs, JD, June 2015, Creighton Law Review, For The Sake Of Public Policy: Plea
Bargaining Demands Sixth Amendment Protection Due To Its Prevalence And Necessity In The
Judicial System, p. 656-7
D. Solutions and Suggestions for Combatting Prosecutors' Unfair Advantage and Ensuring a
Fair Bargaining System
Prosecutors are charged with the professional responsibility to administer justice. n266
Because prosecutors are keepers of the justice system, it is appropriate that prosecutors should
also be responsible for ensuring justice is met during the plea bargaining stage. n267 To assist the
prosecutor in his pursuit to administer justice in the plea bargaining process, the prosecutor would
benefit if he chose a theory on which to base his plea deals. n268 Theories to justify plea
bargaining are broken into two categories: (1) just result theories and (2) resource or efficiency
theories. n269 By utilizing a theory from either category, the prosecutor is more likely to offer a
fair and appropriate plea deal when he is confronted with a defendant who has ineffective
counsel, as opposed to taking advantage of the defendant's unequal bargaining position. n270 The
prosecutor can strengthen his commitment to following his chosen theory by publishing his
guidelines and establishing supervisory boards to ensure the theory is being followed. n271 The
declaration of the prosecutor's chosen theory may benefit the defendant and his counsel, as well
as inspire society's confidence in the plea bargaining process. n272 In addition to adhering to a
particular theory, the prosecutor may benefit by putting bans and limits on offenses that can be
resolved by plea bargaining. n273 Prosecutorial departments that utilize these bans typically
prohibit prosecutors from offering plea deals for serious or violent offenses. n274 Bans allow the
prosecutor to display his commitment to seek greater punishment for serious offenses and prevent
the prosecutor from taking advantage of ineffective defense counsel. n275 Defense counsel
should also take a proactive role in protecting the client's interests by investing time in the study
of plea bargaining and negotiation tactics. n276 The American Bar Association's Standards for
Criminal Justice and the National Legal Aid and Defender Association's Performance Guidelines
for Criminal Defense Representation are two resources that provide guidance on plea bargaining.
n277 Locally established defense counsel standards regarding plea bargaining could also be
established to guide defense counselors in their plea bargaining efforts. n278 For instance, a
defender manual published in Massachusetts, which describes defense counsel's obligations in the
context of plea bargaining, stresses defense counsel's duty to ensure the defendant receives the
most favorable language possible in the plea agreement. n279 Legislatures can also be a
combative force against the unfair advantage the prosecutor has in the plea bargaining process.
n280 While the majority of passed laws are never reconsidered by legislatures, the data associated
with any offense and plea bargaining is relatively easy to attain. n281 If legislatures were more
inclined to review and reconsider previously passed laws, they could assess whether laws are
repetitive, add something new, or are employed simply as bargaining chips by prosecutors. n282
In addition to reviewing and reconsidering previously passed laws, legislatures could also
prescreen new laws in an attempt to determine how the new law will be utilized and what it will
52
add to the current list of offenses. n283 A prescreening law was passed in Colorado in 2011,
which requires all new crimes be accompanied by information to determine whether the new
crime is punishable under a current law, how the new crime compares to current laws, and a
prediction of the frequency of the behavior the new crime will address. n284 Prescreening laws
are not a complete answer to the unfair prosecutorial advantage but these laws do highlight that
legislatures could combat this issue. n285 IV. CONCLUSION Public policy clearly supports the
plea bargaining process; however, public policy does not favor a bargaining system in which the
defendant is at the mercy of the prosecutor. n286 Due to the prevalence of plea bargaining, the
plea bargaining phase of litigation deserves to [*658] be monitored to ensure a just result for both
the prosecutor and the defendant. n287 To ensure a just result, courts ought to hear Sixth
Amendment claims that are based on counsel's incompetence during the plea bargaining process,
which may have resulted in the defendant's rejection of a favorable plea offer. n288 This Article
found that the plea bargaining process has become indispensable to the judiciary system;
therefore, the United States Supreme Court correctly confirmed the extension of ineffective
assistance of counsel claims to the plea bargaining stage was necessary to protect the defendant's
rights. n289 The Article also offered suggestions and solutions to ensure plea bargaining resulted
in a just outcome, which included: (1) choosing either a just results theory or a resource and
efficiency theory to guide the prosecutor in his plea bargaining attempts; (2) banning or limiting
which offenses can be resolved by plea bargains; (3) recommending defense counselors dedicate
time to perfect their plea bargaining skills; and (4) encouraging legislative action to reduce the
prosecutor's upper hand in the bargaining process. n290 The plea bargaining process is now a
vital part of the American judicial system but is far from perfect as it currently stands. Therefore,
a coordinated effort by prosecutorial departments, defense counselors, courts, and legislatures
could greatly improve the system and allow for more just results.
53
Answers to: Supreme Court Won’t Allow Limits on Plea

Bargaining
Supreme Court will accept regulations on plea bargaining
Russell D. Covey, Professor of Law, Georgia State University, Summer 2013, Duquesne Law
Review, Plea Bargaining After Lafler and Frye: Article: Plea-Bargaining Law After Lafler and Frye,
In the spring of 2012, the U.S. Supreme Court decided two cases that threw the phenomena of
plea bargaining into high relief. In Lafler v. Cooper n1 and Missouri v. Frye, n2 the Court was
asked to [*596] decide whether a defendant's Sixth Amendment right to counsel had been
violated when the defendant received deficient advice from his lawyer during plea bargaining and
as a result either proceeded to trial and was convicted, or was forced to enter a later guilty plea on
worse terms, in either event causing him to receive a more punitive sentence than he would have
had he accepted the plea offer. In answering this question in the affirmative, the Court clarified
two important points. First, plea bargaining represents a "critical stage" of a prosecution in which
defendants are fully entitled to effective legal representation. Second, provision of a fair process--
either an error-free trial or entry of a voluntary guilty plea--does not wipe the constitutional slate
clean. Prejudice, in other words, includes the loss of a tangible chance to minimize punishment,
not merely the entry of an unreliable conviction. Notwithstanding the seeming narrowness of the
issues before it, in the course of its analysis the Court was forced to look broadly at the role plea
bargaining plays in the criminal justice system. With uncharacteristic frankness, the Court "called
it like it is," acknowledging and citing academic assessments of plea bargaining that have long
been accepted as truisms by commentators but that until recently have been ignored by the Court.
After acknowledging that guilty pleas account for 97% of federal felony convictions and
94% of state felony convictions, the Court explained why plea bargaining must be subject to
constitutional regulation: Because ours "is for the most part a system of pleas, not a system
of trials," it is insufficient simply to point to the guarantee of a fair trial as a backstop that
inoculates any errors in the pretrial process. "To a large extent . . . horse trading [between
prosecutor and defense counsel] determine who goes to jail and for how long. That is what
plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal
justice system." n3 These observations provided the basis for the Court's conclusion that poor
lawyering that leads defendants to forgo plea offers to their detriment contravenes the Sixth
Amendment right to counsel. The Court's frank recognition of the central role of plea bargaining
in the criminal justice system, and the accompanying need to establish constitutional baselines to
regulate it, suggest a potential jurisprudential turning point. This fact was not lost on Justice
Scalia. In dissenting opinions in Frye and Lafler, Justice Scalia scoffed at the Court's
acknowledgement of plea bargaining's central role in criminal justice and prophesied the
emergence of a "whole new field of constitutionalized criminal procedure: plea-bargaining
law." n4 According to Justice Scalia, "today's opinions deal with only two aspects of counsel's
plea-bargaining inadequacy, and leave other aspects (who knows what they might be?) to be
worked out in further constitutional litigation that will burden the criminal process." n5 At first
blush, Justice Scalia's warnings about the emergence of a new constitutional law of plea-
54
bargaining seem a little strange. After all, plea bargaining has been the subject of constitutional
regulation at least since Brady v. United States definitively established that the practice does not
violate the constitution. n6 Moreover, the parameters of that law have been fixed for decades.
Brady, along with several other decisions, n7 established a constitutional framework within which
plea bargaining can be conducted. At the center of that framework is the requirement that, to pass
constitutional muster, guilty pleas must be voluntary and intelligent. n8 The Court in Brady
identified two reasons for the requirement. First, because a guilty plea was an "admission in open
court that he committed the acts charged in the indictment," the defendant's plea would violate the
self-incrimination clause of the Fifth Amendment if the plea was not voluntary. n9 Accordingly,
criminal defendants may not be physically or mentally coerced into pleading guilty and
prosecutors may not materially misrepresent the terms of bargains. At the same time, a guilty plea
provides the "defendant's consent that judgment of conviction may be entered without a trial" and
thus is "a waiver of his right to trial before a jury or a judge." n10 As the Court long has held,
"waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts
done with sufficient awareness of the relevant circumstances and likely consequences." n11
Defendants are thus constitutionally entitled, before pleading guilty, to be informed of certain
critical information necessary to make informed plea-bargaining choices, including the nature of
the charges, the rights waived by pleading guilty, and the potential sentence that can lawfully be
imposed. Although plea bargains are less than fully-enforceable executory agreements, n12
promises upon which a defendant relies in pleading guilty are enforceable and provide a
minimum floor of constitutional protection in the plea-bargaining process. n13 The Court added
another important girder to its regulatory plea-bargaining framework by making clear that the
right to the effective assistance of counsel extends to the plea process. In McMann v. Richardson,
n14 and then more fully in Hill v. Lockhart, n15 the Court held that defendants have a Sixth
Amendment right to competent legal advice regarding guilty pleas. Hill specifically clarified that
the two-pronged test set forth in Strickland v. Washington governs in the context of guilty pleas
as well. Until recently, this body of rules established the general parameters of what might be
considered "constitutional plea-bargaining law." What then, could Scalia have meant when he
warned of the impending creation of a new constitutional field of plea-bargaining law? Here, I
think Scalia had two things in mind. By and large, the constitutional standards recognized
by the Court to date are overwhelmingly formalistic. As noted above, the heartland of plea-
bargaining law as it now stands is the requirement that guilty pleas be entered into
"voluntarily" and "intelligently." The voluntariness requirement ensures that criminal
defendants are not tricked or physically coerced into pleading guilty and that defendants
know what they are doing and make a conscious decision, given the options available, to
forgo their trial rights and accept conviction and punishment. The intelligence requirement
bolsters [*599] the voluntariness requirement by ensuring that a defendant is fully informed
of the charges to which he is pleading guilty and the rights that he waives by doing so. But
consider what the voluntary and intelligent standards elide. A guilty plea is voluntary
notwithstanding its being compelled by threat of enhanced punishment, as long as the
threatened punishment itself can lawfully be imposed. n16 And a guilty plea is intelligent
notwithstanding that it may be entered with little knowledge of the evidence admissible at
trial or the likelihood that trial will result in conviction. n17 Guilty pleas that are the
product of coercive bargaining tactics, or predicated on threats of penal consequences that
fail to correspond with any rational penal objectives apart from encouraging quick pleas
are thus entirely exempted from constitutional scrutiny under the Court's voluntariness
55
standards. Similarly, although defendants are entitled to receive certain information about
the legal charges against them, the Court has never insisted that defendants receive what is,
in reality, the most important information needed to assess a plea offer: information about
the strength of the state's case and the likelihood that a trial might result in an acquittal.
This aspect of plea bargaining has remained, until Lafler and Frye, almost entirely
unregulated. The new constitutional plea-bargaining law foreseen by Justice Scalia, I believe,
might finally put substantive brick and mortar on the formalistic skeleton of law that currently
regulates--or fails to regulate--what the Court now plainly concedes to be the very essence of the
criminal justice system. What may be looming--and what may have gotten Scalia's goat--in other
words, is a reconsideration of the substantive preconditions for truly voluntary and intelligent
guilty pleas. Justice Scalia's forebodings notwithstanding, such a reconsideration is long overdue.
As numerous scholars have noted, a combination of laissez-faire judicial attitudes towards plea-
bargaining tactics, combined with virtually unchecked prosecutorial charging discretion, and
aided and abetted by all-too-compliant legislatures, has fundamentally altered American criminal
justice. n18 It is past time for the pendulum to swing in the opposite direction. Pursuing this
course may require a sweeping reevaluation of plea-bargaining tactics and procedures in ways
still unforeseen, but the need to set off on this path is clear. The task for the Court is to begin to
take plea bargaining, and the guilty plea process that accounts for upwards of 95% of all state and
federal felony convictions, with the degree of seriousness that such a prominent feature of the
criminal justice system deserves. Lafler and Frye reflect the Court's emerging recognition of the
need to bring plea-bargaining processes more securely within the ambit of constitutional
regulation. Along with another recent plea-bargaining case, Padilla v. Kentucky, n19 Lafler and
Frye indicate the Court's increasing abandonment of the concept of plea-bargaining as an
uninhibited free-for-all in which prosecutors have carte blanche to offer criminal defendants
whatever deals they think convenient to dispose of cases, and defendants must accept or reject
those deals without a very good idea of the wisdom of doing so, or any real alternative to
pleading guilty on the terms offered. n20 The question that the Lafler and Frye cases squarely tee
up, then, is how voluntariness and intelligence should be constitutionally construed. The answer
to that question, I think, will point us toward what this new constitutional plea-bargaining law
should look like. In this symposium contribution, I suggest two initial steps. First, the Court
should finally resolve the uncertainty surrounding the application of Brady v. Maryland to plea
bargaining. Second, the Court should reassess prior plea-bargaining precedents and seek to place
meaningful boundaries on prosecutorial bargaining coercion.
56
Plea Bargaining Generally Good

57
Plea Bargaining Good – General Benfits
Many benefits to plea bargaining
Jacqueline L. Schreurs, JD, June 2015, Creighton Law Review, For The Sake Of Public Policy:
Plea Bargaining Demands Sixth Amendment Protection Due To Its Prevalence And Necessity In
The Judicial System, p. 643-5
This Article will now consider why and how plea bargaining has become a staple in the judicial
system and demands the protection of the Sixth Amendment. n161 First, this Argument will detail
the public policy arguments in favor of plea bargaining, including the benefits it provides to
society, the prosecutor, and the defendant. n162 Next, this Argument will examine the powerful
leverage the prosecutor holds over the defendant, thus requiring Sixth Amendment protection be
given to the defendant during the plea bargaining process. n163 Finally, this Argument will
review two critiques of the Lafler v. Cooper n164 and Missouri v. Frye n165 decisions and offer
some solutions and suggestions to equalize the parties in the plea bargaining process. n166
A. Public Policy Supports Plea Bargaining
The plea bargaining system allows for speedy dissolutions, economic savings, and finality. n167
A general look at the plea bargaining process reveals why it is good from a public policy
standpoint, as well as for all who benefit from plea bargaining, including the general public,
judges and prosecutors, and defendants. n168
1. Analyzing Plea Bargaining as a Market Transaction: The Easterbrook Theory
From society's viewpoint, the plea bargaining process is beneficial as it assures implementation
of punishment; whereas if the defendant is acquitted, he will go free. n169 Under Judge Frank
Easterbrook's Theory, society's interest in deterring future criminals is also addressed by the plea
bargaining process because the prosecutor considers society's interest in maximizing deterrence
by offering plea bargains. n170 In addition to the realization that plea bargaining allows for less
prosecutorial and judicial resources, the Easterbrook Theory recognizes that law enforcement
resources are also saved by plea bargaining. n171 By freeing up more of their resources, law
enforcement personnel have the ability to spend more time in the field to deter future crimes.
n172
While society may worry the worst offenders are let off easy due to plea bargains, serious
offenses are much less likely to be resolved by plea agreements than less serious offenses. n173
Some jurisdictions have gone as far as to limit or ban plea bargaining for serious and/or violent
crimes, which allows society to benefit from the plea bargaining process but still ensures the
interests in deterrence, vengeance, and fairness are met. n174
2. The Economic Benefits Provided to the Judicial System by Plea Bargaining
58
Due to increasing indictment numbers and overcrowding, the judicial system benefits from the
plea bargaining process. n175 The ability to relieve prosecutorial resources has long been
recognized as an important advantage of the plea bargaining process, and with felony indictments
increasing three-fold alone, the importance of plea bargaining in the judicial system today cannot
be denied. n176 The plea bargaining process also allows prosecutors to ensure punishment even
though the case to convict the defendant may be weak. n177 Whereas when the charged offense
is easy to prove, the prosecution has less reason to plea bargain, let alone offer a plea deal that is
highly beneficial to the defendant. n178 However, due to the offense's easy-to-prove [*646]
nature, defendants often seize an opportunity to plead before trial in the hope of benefitting from
cooperative efforts. n179
The plea bargaining system also allows for quick and complete dissolution of the charges,
which makes it highly desirable for the prosecutor. n180 The United States Supreme Court
touched on the importance of plea bargaining and the finality it provides in Santobello v. New
York, n181 noting if plea agreements did not have this finality characteristic, trials would be
necessary for every charge and judicial expenses would greatly increase. n182 The Santobello
decision revealed the Court's appreciation for the resource-saving virtue of the plea bargaining
system. n183 The Court encouraged plea bargaining as long as the agreement was fair. n184 The
Court continued that if a promise was made on behalf of the prosecution, it must be on the record
and fulfilled. n185 The Santobello opinion properly expressed why the judicial system favors the
plea bargaining process. n186
The reductions in court expenses and time burdens are two of the greatest public policy
arguments for plea bargaining, from both the judicial system's perspective and an economic
perspective. n187 In addition to freeing up what little resources the government may have, plea
bargaining also prevents the need to hire many more prosecutors, judges, and court staff, which is
not currently possible with most state and federal budgets. n188 Studies have found that if plea
bargaining was banned the number of trials would increase, in turn increasing the government's
costs due to: (1) greater time requirement, (2) jury compensation, (3) expert witness testimony,
and (4) other trial costs. n189 In today's world, a simple case involving a driving under the
influence of alcohol ("DUI") charge often requires an expert's testimony at trial. n190 For
instance, if plea bargaining was limited or banned, the Nebraska judicial system and state budget
would have to handle almost 10,000 trials for DUI charges alone. n191
3. Plea Bargaining Benefits the Defendant by Providing Choice and Predictability
The advantages provided by plea bargaining for the defendant originally stem from the ability to
contract. n192 The ability to contract allows the defendant to negotiate and reap financial
benefits. n193 While Easterbrook's Theory touches on the advantages of plea bargaining for the
defendant, utilitarian theories center on the premise that all should be free to contract, and plea
bargaining allows defendants to do just that. n194 Freedom-to-contract proponents advocate that
plea bargaining allows each party to benefit and gain from the agreement. n195 Viewing the plea
bargaining process from a contracts perspective is also beneficial for society and the judicial
system because it allows for predictability, consistency, and fairness. n196
The defendant benefits from plea bargaining because it allows him the ability to negotiate and
minimize his punishment, by avoiding harsher punishments, which may not be possible if he had
59
proceeded with a trial. n197 The defendant may revoke the agreement and proceed with a trial if
the plea agreement is violated or not enforced according to its original terms. n198 Accordingly,
the defendant maintains some control and ensures the agreement reached between the prosecutor
[*648] and the defendant is followed. n199 Therefore, the defendant often receives a better
sentence than he would have received if found guilty at trial. n200
Not only does the government receive cost benefits from avoiding trials by plea bargains, but
the defendant also experiences financial savings by agreeing to a guilty plea. n201 A defendant
charged with a simple misdemeanor may find it financially smarter to plead guilty and accept the
sentence, rather than bear the costs of a full trial where he may be found guilty. n202 Plea
bargaining also allows the defendant to limit his public image and reputation costs associated
with charges of immoral crimes. n203
B. Due to the Unfair Bargaining Power Prosecutors Have, the United States Supreme Court
Appropriately Confirmed That a Claim for Ineffective Assistance of Counsel Could Be Made if It
Led a Defendant to Reject a Favorable Plea Offer
The plea bargaining phase is a vital time for the defendant, as it determines either the next step in
the proceeding or the consequences for the defendant. n204 Due to the nature of this phase, the
United States Supreme Court correctly confirmed the Sixth Amendment right to effective
assistance of counsel applied to all parts of the bargaining process, including the rejection of a
favorable plea offer. n205 While the plea bargaining phase is a vital opportunity for the
defendant, it is also an important time for government dissolution, as over ninety percent of cases
conclude at this phase. n206 In fact, the Missouri v. Frye n207 opinion states that ninety-seven
percent of federal cases and ninety-four percent of state cases are settled by a guilty plea. n208
Competent defense counsel must be present during plea bargaining to safeguard against unfair
offers and unsound decisions, thereby upholding the defendant's Sixth Amendment right to
effective assistance of counsel. n209
Taking a case to trial is extremely risky for a defendant because: (1) the increased charges the
prosecution may assert against him; (2) the increased sentence length and fine amount; and (3)
the unlikeliness of being acquitted. n210 While plea bargaining has been an acceptable part of the
judicial system since the 1970s, there has been a substantial increase in the percentage of cases
that are resolved by the plea bargaining process since then. n211 Some legal scholars are
attributing this increase to the power tactics the prosecutor now has to force plea agreements,
including overcharging the defendant, threatening harsher sentences for proceeding with trial, and
withholding information or being vague. n212
The ability to overcharge gives the prosecutor the upper hand in plea bargaining as he often
will induce the defendant to agree to the plea offer in order to avoid horizontal or vertical
overcharging. n213 Either overcharging practice results in a greater sentence length; thus, the
defendant's inclination to accept the plea offer increases. n214 Due to mandatory sentencing
guidelines, which inflict basically nonnegotiable sentences, the plea bargaining process may be
more accurately termed the charge bargaining system because the charge the defendant [*650] is
convicted of will dictate the defendant's sentence. n215 Combined with overcharging practices,
mandatory sentences passed by state and federal legislatures have played a substantial role in the
decrease of trials, as overcharging could be used at the opening of plea negotiations or as a result
60
of failed plea negotiations. n216 For instance, the prosecutor may come into negotiations
threatening to charge the defendant with three offenses when the prosecutor's objective is to
persuade the defendant to agree to plead guilty to only one of those offenses. n217 Thus the initial
overcharging creates great leverage for the prosecutor. n218 If the prosecutor cannot convince the
defendant to accept an initial plea agreement, the prosecutor may also overcharge by increasing
the charge and consequently increase the sentence. n219 The increased charge and sentence that
results when the defendant chooses to forego a plea offer and continue with a trial constitutes the
trial penalty. n220 Legal experts view the trial penalty as coercive and as a means to punish the
defendant for exercising his constitutional right to a trial. n221
The prosecutor may also persuade the defendant to accept a plea deal by withholding
information, being vague, or threatening the defendant. n222 In order for the plea bargaining
system to function correctly, any plea agreement should benefit both parties to some extent,
although the benefits to the government will likely be greater. n223 [*651] However, when the
prosecutor is allowed to withhold information, threaten the defendant, and utilize other coercive
tactics, the plea bargaining system is not functioning as a just system but rather as a one-sided
transaction. n224 In such a malfunctioning system, the rationale underlying the utilitarian theory,
which advocates plea bargaining because of the mutual benefits it provides to each party, is lost.
n225 A prosecutor that withholds information generates deficient representation on behalf of the
defendant and prevents the parties from arriving at a mutually beneficial plea agreement. n226
If the plea bargaining system is to remain a vital part of the judicial system, then measures
must be taken to ensure the accused receives good and accurate advice, as guaranteed by the
Constitution. n227 The penalties of rejecting a plea agreement have become so extreme that
innocent defendants are being coaxed into pleading guilty to avoid the risks and harsher sentences
associated with conviction at trial. n228 To bring balance back to the plea bargaining process, the
defendant and his counsel must have access to accurate information. n229 This affects the advice
given by counsel and the defendant's decision to accept or deny any plea offer. n230 The
defendant may feel he is being forced into a plea agreement; however, he has a choice in
determining whether a plea agreement or a trial is the right path, as both can carry different value
and meaning to the defendant. n231
To facilitate the defendant's voice in the plea bargaining system, both parties must respect
the defendant's right to and need for competent counsel. n232 However, many things may prevent
the defendant from receiving adequate legal advice from counsel, including: (1) underfinanced
public defender's offices, (2) caseload pressures, or (3) defense counsel's desire to avoid trials in
general. n233 An underfinanced defender's office results in decreased resources, time, and ability
to try cases, which means the defendant may feel pressured from counsel to settle. n234 Defense
counsel may also have a financial incentive to advocate for a plea agreement, when he is paid a
single, advanced fee, though it may not be in his client's best interest. n235 When these financial
aspects are combined with great caseloads, the incentive to encourage a plea agreement is strong,
although the plea agreement may not represent the defendant's best interest. n236
Extension of the Sixth Amendment right may also restore some of society's faith in the
judicial system, as society has viewed the plea bargaining process as disparate and secretive. n237
American society has long regarded the right to be heard in one's defense as fundamental for a
just system; however, plea agreements subvert this right and can leave many questions
unanswered. n238 While plea bargaining had long been kept under wraps, it is now an apparent
61
part of the judicial system. n239 The secrecy lies not in the process itself but in how the process
works, which causes concern for the public. n240 Both the defendant and the State have an
interest in assuring the presence of competent defense counsel to avoid a later determination that
the guilty plea was invalid due to incompetent counsel. n241 Competent defense counsel can then
protect society's interest in producing a more uniform plea bargaining system by not allowing the
prosecutor to take advantage of the defendant or to conceal misconduct. n242
62
Plea Bargaining Good for Defendant -- Dignity

Reducing the alienation of the defendant increases cooperation, makes
remorse more likely, and increases the chances of rehabilitation
Plea Bargaining as Dialogue, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2701413p.. 65-
6
Empirical studies point to satisfaction with treatment as a key factor in evaluating the
performance and legitimacy of legal authorities. n10 The more a person experiences the
process as fair, the easier it is to accept [*66] the legal decision. n11 The criminal justice
process should not only give defendants fair treatment, but it should also make them feel that they
received fair treatment. Treating defendants with respect has a therapeutic effect: defendants
are willing more readily to accept responsibility for their behavior and even to modify it.
n12 Research shows that meaningful participation by the accused person in the criminal
justice process dramatically increases that individual's sense of fair treatment
independently of the final outcome of the trial. n13 The feeling that one's voice was heard -
that there was the opportunity to present arguments and be listened to - bears heavily on a
defendant's evaluation of the proceedings. n14 There is a connection between a sense of fair
treatment, including having one's views considered, and the sense of control on the final decision.
n15 In assessing the fairness of the process, accused persons give weight both to respect for
their rights and to respect for them as human beings. n16 The message then conveyed is
that one is a member of the community. n17 A full criminal trial is certainly an unattractive
option in terms of the defendant's degree of participation. Many defendants do not testify at trial,
and as a result, their version of events is rarely heard. n18 Furthermore, defendants sometimes
appear isolated because the focus of the trial is on their lawyers. n19 From a normative point of
view, defendants want to be listened to, and a defendant should participate in the criminal process
"as an active subject, not merely as a passive object." n20 Meursault was frustrated because
nobody seemed to be interested in his testimony. After his lawyer advised him not to talk at the
trial, he felt that "there seemed to be a conspiracy to exclude me from the proceedings; I wasn't to
have [*67] any say and my fate was to be decided out of hand." n21 Occasionally, he wanted to
express his frustration: "But, damn it all, who's on trial in this court, I'd like to know? It's a
serious matter for a man, being accused of murder. And I've something really important to tell
you." n22 It is only natural that representation by a lawyer, who speaks on behalf of the
defendant, in a legal language that the latter does not understand, would alienate the defendant
from the legal process despite the many advantages of such representation. n23 This sense of
alienation then makes it difficult for defendants to recognize the justice of their conviction. n24
Jonathan Casper succinctly describes the feelings of the defendant following an encounter with
the criminal justice system: When he does get caught, and "they" punish him, he discovers that
they really don't care very much about him. He is a nuisance, and they treat him as though they
would some incidental bother distracting them from going about their lives. His interaction with
the law - in which he finds himself an object in the hands of those who simply wish to get rid of
him - enforces his own image of himself as an outsider and as a "bad person." n25
63
Plea bargaining gives defendant’s the opportunity to show remorse and be

involved in their own sentences
Plea Bargaining as Dialogue, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2701413p.
67-8
It is claimed that one of the advantages of plea bargaining is that "of tailoring sentencing to the
needs of individual defendants." n29 Moreover, plea bargaining allows defendants to actively
take part in the determination of their sentence and, consequently, engenders in them feelings of
dignity and a sense of self-worth. n30 Casper posits that most guilty defendants normally
recognize the wrongness of their behavior. n31 They are less willing to participate in determining
their sentence, but rather want someone to help extricate them from the cycle of crime and to lead
normal lives. n32 Plea bargaining as dialogue can promote all these goals.
Plea bargaining critical to dialogue and respect for the dignity of the defendant
77-9
IV. Dialogue through Plea Bargaining

As we have seen, character evidence may distort justice. A lack of character evidence,
however, strips the defendant of his unique human characteristics. Plea bargaining as
dialogue may sidestep the problem of character evidence and suggest a middle path between
exploring the defendant's soul, as illustrated by The Stranger, and addressing the defendant as a
pure number devoid of personality, as reflected in the kind of plea bargaining offered to Galin E.
Frye of Missouri. This intermediate approach is manifested in the conducting of true negotiations
between prosecutor and defendant in which the defendant and the defense counsel are given the
opportunity to present the defendant's positive traits. A defendant's ability to take an active part
in the proceedings against him maintains the defendant's dignity as a human being. n111
Scholars view plea bargaining as granting defendants an opportunity to participate in determining
their fate. This description of empowerment, however, does not accord with reality, in which
"plea bargains often result from a quick phone call or hallway conversation between prosecutor
and defense counsel." n112 It would be very odd to contend that Frye was empowered as a result
of his plea bargaining experience. It is more accurate to say that he experienced a sense of
disempowerment. Such an experience also undermines the goals of therapeutic jurisprudence.
Therapeutic jurisprudence strives to use law "to function as a kind of therapist or
therapeutic agent." n113 It uses social sciences to examine how law can promote the
physical and psychological well-being of an individual. n114 However, if the defendant is
not involved in the plea bargaining process, no therapeutic effect can be achieved. n115
Disparity of power between the prosecutor and the accused is inherent in the criminal process. It
is not only the resources available to law enforcement authorities and their ability to gather
evidence that lead to the disparity. Even when the defendant is a wealthy person, the imbalance is
created from the asymmetry in trial results to the parties. The defendant is the one who is exposed
64
to the dangers of conviction and the deprivation of liberty, a situation that makes him most
vulnerable. n116 Therefore, no kind of negotiations would cancel the disparity in bargaining
power between the prosecutor and the defendant. The defendant, as the one whose life will be
affected directly from the outcome of the trial, has simply much more to lose. Still, negotiations
that enable a defendant to express his opinions and wishes places the defendant in a higher
status compared to the accused's status during pre-trial investigation and the trial itself.
n117 Israeli Supreme Court Justice Eliyahu Matza has stated that the adversarial criminal justice
system dictates not only a conflict between the rival parties but also a dialogue between them,
which could be implemented within the framework of plea bargaining. n118 Indeed, the very
dialogue between defendant and prosecution can lead to reducing the former's sense of
alienation, felt throughout the criminal justice process. Dialogue will enable the defendant
to freely give his version of the events. He would then obtain the opportunity to play a
meaningful role during the legal process even if he wanted to waive trial by issuing a guilty
plea. The United States Supreme Court has attached great importance to the role that counsel
should play in providing mental support for the defendant. The presence and advice of counsel
are supposed to dissipate the coercive impact of any offer of leniency in return for the defendant's
guilty plea. n119 The Court, in fact, has held that defendants are entitled to the Sixth Amendment
right to effective assistance of counsel during plea negotiations. n120 Since the defense counsel's
main work is conducted with the prosecutor to obtain a plea bargain, the former should be an
effective negotiator in order to achieve optimal results for the client. n121 During the
negotiations, defense counsel can show to the prosecutor the defendant's good traits so that the
accused will be able to feel that he is being addressed as a human being, not as a monster.
65
Plea Bargaining Good for Defendant – Process Protections
Counsel does not always represent the defendant well. Plea bargaining
provides an opportunity for them to defend themselves
Plea Bargaining as Dialogue, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2701413, p.
79-81
Obviously, a serious gap exists between the ideal role of defense counsel and the way this
function is implemented in practice. n122 Not only prosecutors but many defense counsel, as
well, assume the defendant's guilt to be undisputed. n123 Defense counsel may even have
incentives to encourage a plea of guilty from the client. n124 In addition, defense counsel are
generally overloaded and may have little or no time to spend trying to understand the defendant's
motives or bothering to present the defendant's character and background in the most beneficial
way. n125 There are defense counsel who implicitly convey the message that they are not
concerned about their client's guilt or innocence. n126 No theory can make a lawyer who does not
take into account the interests of the client be concerned about their client's guilt or innocence.
Direct dialogue between prosecutor and defendant will enable the defendant to receive direct
information from the prosecutor and help sidestep any such problems in representation. The
defendant, especially one who does not enjoy zealous representation, could take the opportunity
to be introduced directly to the prosecutor without any barriers. Speaking up does not require
familiarity with substantive or procedural criminal law. Almost everyone can just relate her side
of the case. That said, most defense counsel do provide competent representation. Generally, the
skills of public defenders do not fall short of those of prosecutors. n127 Moreover, many defense
counsel do evince concern about their clients' welfare and perceive their own role also as a kind
of social worker. n128 They understand that the criminal justice process may be a traumatic
experience for their clients and are inclined to soften it for them. n129 Competent defense counsel
should present the defendant's personal story to the prosecutor. Having a good character and
leading an honest life may - not must, of course - prove that the defendant was unlikely to [have
engaged in a heinous crime. n130 Even when not a case of innocence, if the defendant's attorney
had functioned effectively as a negotiator and presented to the prosecutor data such as the impact
of imprisonment on the defendant and the well-being of his family, there is more of a chance of
receiving better results for the defendant. n131
66
Plea Bargaining Good – Restorative Justice

Dialogue in plea bargaining supports restorative justice
81-3
V. Restorative Justice Through Plea Bargaining
Restorative justice seeks "better ways of doing justice." n134 Aiming at reconciliation
between the parties and repair of the harm caused, it focuses upon relationships among the victim,
the offender, and the community. n135 Restorative justice allows the defendant to understand the
human side of the harm that was caused. n136 People's attitudes following the offense reflect the
importance of the social norm violated. n137 Undoubtedly, an apology that is attendant upon
repentance may have a curative effect on the victim. n138 Many victims prefer forgiveness over
retribution. n139 Plea bargaining negotiations may provide an excellent opportunity for a
remedial offender-victim encounter. n140 The prosecutor could simply enter the victim into the
dialogue with the defendant in appropriate cases and at the appropriate time. The process of
restorative justice normally depends on the consent of the victim. n141 This is a serious flaw. It is
claimed that taking the victim's position toward the defendant into account has nothing to do with
the search for justice. The fate of the defendant does not have to be dependent on the position of
one individual or another but on the degree of the blameworthiness of the accused. n142 Nor
should the victim determine the proper punishment. n143 Lacking objectivity, the victim's
response is subjective and depends on his personal characteristics, as well as the point in time in
his life. n144 As opposed to the prosecutor, the victim does not have to take into account the
public interest or the principle of proportionality in inflicting the proper punishment. Hence,
taking the victim's view into account might violate the equality requirement, which necessitates
that two offenders who committed the same offense with the same degree of culpability [*83]
deserve an identical punishment. n145 Additionally, repentance (of course, by a guilty offender)
should be encouraged, given the importance of sincere repentance both to the offender and to
society at large. n146 There are victims, however, who are not satisfied by repentance; and
occasionally for very justifiable reasons, they are not interested in any contact with the offender.
The thought that a reluctant victim has a veto over the fate of the offender, especially if the latter
was trying to partially repair the harm through repentance and making amends, may discourage
the offender from any attempt at rehabilitation. n147 Dialogue between the prosecutor, who
represents society, and the defendant can take place even without the involvement of the victim.
Although not every victim - nor, for that matter, every offender - is eligible for restorative justice
processes, n148 dialogue between prosecutor and defendant can almost always take place.
Victimless offenses, such as importing drugs or tax evasion, are an example. Some of the goals of
restorative justice may still be secured without a victim's participation in the process. When the
prosecutor communicates to the defendant how society perceives the offense and the harm caused
to the victim, the defendant can respond to the criticism. This dialogue may enable the defendant
to internalize the prosecutor's perception, accepting responsibility for the misdeed and
understanding its wrongness. Direct dialogue with the prosecutor, then, may inspire repentance
67
and modification of the defendant's conduct. Of course, face-to-face encounters in which the
victim relates his feelings about the offense can perhaps more deeply permeate the heart of the
defendant. However, the latter can also absorb the harm caused through a third party who reflects
the impact of the offense on the victim and on other parties affected by the offense and tries to
convey the perspective of society and the victim alike. Obviously, the plea negotiation process
between the prosecutor and the defendant does not rule out a restorative justice process with the
victim's participation in appropriate cases. Normally, it is easier for defendants to communicate
their views to a prosecutor outside of the trial process. In conversing with the prosecutor, the
defendant does not have to worry about what is said; his [*84] words will not militate against him
because negotiations with the prosecutor to establish a plea bargain are confidential. Defendants
can simply tell their own story from their own perspective. Even a person with an extensive
criminal record has a story; e.g., the circumstances that led up to the offense. By listening, the
prosecutor accords the defendant respect. In this way, a dialogue with the prosecutor may
empower the defendant and reduce any sense of loss of control that is felt. Being a partner in the
dialogue imparts a sense of choice rather than a feeling of coercion.
68
Answers to Objections to ____ Proposal – Plea Bargaining as

Dialogue
84-5
VI. Possible Drawbacks

The suggestion to establish a true dialogue between the defendant and a representative of the
prosecution's office carries some drawbacks. The following subsections will come to grips with
them.
A. Time-Consuming
The main goal of plea bargaining is to clear dockets. Caseload pressures render the suggestion to
make a genuine dialogue with defendants unattractive to prosecutors and defense counsel alike.
Overburdened prosecutors and defense counsel have no time for true negotiations. n149 They
want to move quickly to the next case. Obviously, the prosecution may see no reason to devote
resources to this purpose. Moreover, it can be argued that the willingness of prosecutors to offer
plea bargains will be reduced in view of the effort required to conduct a time-consuming
dialogue. Many defense counsel, for their part, tend to accept the prosecutor's evaluations as to
the appropriate punishment and are not accustomed to, and perhaps are not interested in,
negotiating with the prosecutor adversarially. n150 Efficiency is an essential component of the
criminal justice system. n151 There is not sufficient time to treat every defendant as unique. n152
As Markus Dubber observes, "Offenders and victims alike are irrelevant nuisances, grains of sand
in the great machine of state risk management." n153 However, the time consumed by
negotiations to obtain a guilty plea would be much shorter than the time consumed by cases that
go to trial. Communicating a defendant's character and personal circumstances to the prosecutor
and communicating the prosecutor's message regarding the offense to the defendant would
involve a reasonable expenditure of time. Moreover, it involves neither witness inconvenience
nor court time.
B. Harming the Defense
It may be argued that the conduct of a true dialogue within the plea bargaining process would be
harmful to the defense in the event that negotiations fail. In this case, the defendant's attempt to
claim innocence or to raise arguments in her defense may actually be helpful to the prosecution.
Giving the prosecution advance knowledge of the central arguments of the defense may buttress
weaknesses in the prosecution's case, n154 and better prepare the prosecutor for trial.
Additionally, prior personal acquaintance with the defendant may provide the prosecutor with an
advantage in conducting cross-examination. To ensure the exchange of information without fear
of devastating consequences, the plea bargaining negotiations with the defendant ought to be
conducted by a different prosecutor from the one who would conduct the trial and should be
confidential. Separating the prosecutor who conducts the trial from the prosecutor who conducts
69
the negotiations will also create internal supervision within the prosecution on the conduct and
the content of the plea bargain. Concentrating too much power in the hands of one prosecutor is
generally not a desirable situation. n155
C. Faking Good Character and Repentance
Scholars argue that one of the justifications for plea bargaining is that it allows prosecutors to
take human considerations into account n156 and, hence, to bypass the rigidity of the Sentencing
Guidelines. n157 It may be argued, however, that laying stress on a dialogue that provides the
defendant with the opportunity to present his good qualities may benefit manipulative defendants
who succeed in deceiving with their charm. The defendant can simply fake repentance in order to
gain a milder punishment. n158 It is difficult to identify repentance or to evaluate its sincerity.
n159 After all, "if a jurisdiction reduces punishment for convicts who express contrition, it invites
a parade of purely instrumental apologies into its sentencing procedures and risks rewarding the
best actors rather than the most transformed." n160 At any rate, it is difficult to assess a
defendant's traits in the short span of time available to become familiar with him. n161
Additionally, most of an offender's personal characteristics are not relevant to sentencing. n162
However, defendants might prompt sympathy for reasons unrelated to the degree of guilt or
degree of dangerousness. Sympathy and lack of sympathy for the defendant can be influenced by
irrelevant grounds, such as race, gender, religion, and the social class to which the defendant
belongs. n163 The danger that the defendant would fake remorse or be judged by irrelevant
criteria is not unique to plea bargaining negotiations; it also exists at a trial. n164 Therefore, this
argument fails to undermine the process of a true dialogue with the defendant. Moreover, if
expressed repentance is revealed to be insincere, it can hurt the victim and enhance the injury
caused by this person in the wake of the offense. n165 Such insincerity would not personally hurt
- certainly not to the same degree - the prosecutor who conducts the negotiations with the
defendant.
D. Exerting Pressures on Innocent Defendants
Scholars have discussed the danger of innocent defendants making false guilty pleas as a
result of plea bargaining. n166 Such defendants have lost any confidence in their ability to be
acquitted and so welcome any suggestion of leniency. n167 Indeed, the leniency that the
prosecution normally offers makes a guilty plea an attractive option for risk-averse defendants.
And if, as has happened, the proposed plea bargain is very lenient, the defendant may feel unable
to take the risk of going to trial. n168 Innocent defendants may face an even greater temptation to
admit guilt than would guilty defendants because in light of the weakness of the incriminating
evidence, the prosecutor offers them an attractive plea bargain that seems magnanimous and too
good to turn down. n169 Thus, increasing the attractiveness of plea bargains may have the
adverse result of pressuring innocent defendants to participate in plea bargaining proceedings,
thereby raising the risk of false convictions of innocent defendants. This concern has merit.
However, there is hope that a true dialogue between the defendant and the prosecutor will
convince the latter of the defendant's innocence and bring about a dismissal of the indictment. It
should be recalled that defendants need to admit guilt in order to participate in restorative justice
processes. n170 In those proceedings, too, there is the fear of a false confession by defendants.
n171 In plea bargaining negotiations as dialogue, the admission of guilt does not constitute a
precondition for participation.
70
Plea bargaining should be reformed to support dialogue
87-8
Filing charges against a person alienates that individual from society. It makes the individual
feel like a child, standing helpless against the greater power of adults. Throughout this Article, the
protagonist of Camus' The Stranger, Meursault, who is excluded from both trial and life, n172 has
served as an example of this feeling of alienation. To help the defendant overcome this feeling, an
accused individual should be treated respectfully, including the ability to reference made to his
unique positive characteristics. Most importantly, the defendant should be allowed to take an
active part in the criminal proceedings being conducted against him. n173 In The Stranger,
everyone has something to say about the defendant except for the defendant himself. n174 When
he does speak, his words are seen as irrelevant. No one is listening or trying to understand what
he is saying. His explanations are ignored or ridiculed. When Meursault says he killed because of
the sun, he is mocked. The defense attorney quickly silences him and forces him to stay passive.
No one attempts to find out what he meant. In fact, he does not participate in the trial. The lawyer
speaks on his behalf. According to the adage, if you cannot beat them, join them. Given the
ubiquity of plea bargaining and the fact that eradication of this process is not feasible in the
foreseeable future, we should strive to derive the utmost benefit from this legal vehicle.
Defendants' perception of fairness is crucial to the legitimacy of the legal decision in their eyes. If
defendants experience the procedure of plea bargaining as unfair, the legitimacy of legal
authorities may be decreased and the defendants' readiness to obey the law attenuated. n175
People need to feel that what they say could have an influence on the outcome of the trial. n176
Plea bargaining can and should be a device for empowerment. Case load pressure
notwithstanding, defendants should be key players in the criminal justice proceedings to which
they are subjected. Dispute settlement is an important component of doing justice. To this end,
plea bargaining offers a unique opportunity to enable defendants participating in the process to
bypass the prohibition of introducing character evidence, and to circumvent the need for the
victim's consent in restorative justice. Only a dialogic process may be meaningful for defendants
if we want them to learn a lesson from their trial and to modify their conduct. Such a dialogue
helps decrease the feeling of alienation that defendants normally experience, since it reflects a
respect for human dignity. It is worth the price of rendering plea bargaining a bit [*89] more
complex. The ubiquity and plasticity of plea bargaining gives us the opportunity to shape new
rules for the criminal justice process. With the new rules, Meursault's urgent appeal "it's a serious
matter for a man, being accused of murder. And I've something really important to tell you," n177
should receive a significant response during the plea bargaining process. Plea bargaining
proceedings should heighten defendants' participation in the process and convey to them an
educational message. Waiving one's right to a day in court does not imply waiving being
addressed as a human being rather than as a number.
71
72
Restorative Justice Good
Restorative justice an alternative to incarceration
Tara Mattheson, 9-9-16, Education Drive, Obama administration announces rubric to guide use
of school resource officers, http://www.educationdive.com/news/obama-administration-
announces-rubric-to-guide-use-of-school-resource-offic/426022/
While effective, the New York Times Magazine reported this week on how
exhausting restorative justice efforts can be. They do, however, help schools avoid
the variety of challenges that come with educating students who have been
incarcerated. A judge in Mississippi has also cut down on the flow of kids from
schools to her courtroom by limiting superintendents from allowing referrals based
on dress code violations or certain non-violent behavior issues.
Restorative justice avoids the school to prison pipeline
Susan Dominus, 9-7-16, New York Times, An Effective But Exhausting Alternative to High School
Suspensions, http://www.nytimes.com/2016/09/11/magazine/an-effective-ut-exhausting-
alternative-to-high-school-
suspensions.html?rref=collection%2Fsectioncollection%2Feducation&action=click&contentColle
ction=education&region=rank&module=package&version=highlights&conten&_r=0
The federal guidelines suggested that educators consider, among other
alternatives, an approach called restorative justice, which differs radically
from zero tolerance. Restorative justice is built on values like community,
empathy and responsibility; in its specifics, it asks students and teachers to
strengthen connections and heal rifts by sitting on chairs in circles and allowing each
participant to speak about how a given incident affected him or her. It could easily be
dismissed as an impossibly amorphous process for overworked teachers
and volatile students were it not for its success so far, in programs in Denver
and Oakland that started in the mid-2000s. Schools employing restorative
justice, or restorative practices, as it’s sometimes called, experienced such
significant results — lowered suspension rates, higher graduation rates,
improved school atmosphere — that both cities, as well as San Francisco, now offer
restorative-practices training for all educators. New York’s Education Department is
investing in training its own faculty, and Schools Chancellor Carmen Fariña has
expressed her enthusiasm for the approach. Leadership and Public Service High
School first started experimenting with restorative practices in 2011, when
Phil Santos became principal. Since then, every year, he has requested more resources
and training for his teachers, making him, within New York City, a relatively early
adopter. As committed as he remains, making the shift to this new approach has been, as
Santos describes it, “exhausting” and “messy”; changes in teacher attitudes and student
73
behavior come slowly. His school’s experience is emblematic of the challenges schools
face as educators try to replace a discipline policy that removes students from the school
with one that aspires to help them become peaceful citizens in society. As the staff of
Leadership tried to apply its new philosophy to the incident involving Walsh and the
student, the process would reflect many of the tensions that drove up suspension rates in
the first place — issues around race and power that even the most progressive educators
struggle to talk about honestly, all the while knowing that doing so is essential to making
real change. Santos grew up in Queens in the ’80s, with the kind of childhood that
makes it easy for him to empathize with the students in his school, 70 percent of whom
qualify for free lunch and 80 percent of whom are students of color. His father was
incarcerated for part of his childhood, and his mother, he says, was not stable enough at
the time to care for a child. Instead he was raised by his great-grandmother, great-aunt
and great-uncle. In high school, Santos became active in his youth church and
considered becoming a pastor before switching to education. He is a trim man who
carries himself with a brisk, military bearing. He intimately understands, he says, why so
many of his male students feel compelled to fight to prove themselves. He was born with
one hand and could have been a target. “If I went to a new school, if I didn’t fight early
on, the rest of my time there would have been harder,” he says. Santos arrived at
Leadership, where most incoming students are performing below grade level, wanting to
make changes, fast. At times, in his righteousness, he approached his staff as if he were
taking on that first fight at a new school. “If you are unwilling to hold our students to
high expectations,” he wrote in a newsletter to teachers early in his tenure, “provide the
necessary support, restore damaged relationships and demonstrate unconditional love,
then Leadership and Public Service is not for you.” Leadership had long been the kind of
school where many teachers saw their job solely as teaching; managing discipline was the
role of deans, whom they would call to the classroom “for anything more than the
crumpling of a paper,” says Sara Mitchell, a music teacher who started at Leadership two
years before Santos. Santos’s priority was to shift that habit; he urged teachers to take
the time to talk to the student, calmly, outside the classroom, to work on building the
relationship — even to take responsibility for possibly inflaming a situation with a harsh
tone of voice. Many teachers decided that the school, under Santos, was not, in fact, for
them. Eleven out of 51 left at the end of his first year. Some would have retired or moved
anyway, but others were skeptical about his empathy-based approach. (“What are we,
going to get in a circle and sing ‘Kumbaya’?” one was heard to mutter during a faculty
meeting.) Some worried that Santos wanted to cede too much control to students, while
others felt he wanted more work from them on their own time than was reasonable. “I
think they felt, Are you saying I am not pushing myself enough already?” says Candace
Thomas-Rennie, a guidance counselor at Leadership whom Santos hired in his first year
as principal. “That’s insulting for a veteran who has the results to back up their own
practice.” Santos replaced the staff members who left with a diverse group of young
teachers and recruited a new dean, Erin Dunlevy, a 32-year-old former Spanish teacher
who had been trained in restorative practices. Before the school year even started, she
spent a few hours one day introducing the principles of restorative justice to about 20
students who were chosen because they had leadership potential but also were often in
conflicts. Dunlevy knew change would take time, but she was still rattled when, within
the first month of school, one girl from that group brawled with another girl. Dunlevy,
who tried to intervene, ended up in the emergency room with a broken toe, after a fire
74
extinguisher that one girl threw at the other landed on her foot. “There was a lot of heavy
lifting to do at that school,” Dunlevy says; later that year, a student fired a gun at a
bathroom urinal. (That student and the girls who had fought were suspended.) She
continued to work closely with students as well as the other disciplinary deans, teaching
them how to conduct circles that would resolve conflicts. The training emphasized each
party involved owning up to his or her responsibility and making amends, with an honest
conversation or an action (a student who had left a classroom in disarray might help the
teacher clean it). She also coached teachers on how to use language that set a welcoming
rather than punitive tone. “As opposed to, ‘You’re late, sign this late log,’ it’s, ‘Hey, this
class is not complete without you — I need you to be here,’ ” Dunlevy says. But she
frequently felt the staff had not yet had enough time to internalize the philosophy. “A
teacher would say, ‘I need you to restore this kid,’ ” she says, “as if it was my job to fix
this kid, instead of what was supposed to be happening, which was the teacher making
an effort to repair the relationship.” She recognized that it takes work for teachers to
interrupt a classroom lesson to step outside with a troublesome student, or to ramp up
the psychological support they offer. ‘It’s a big ask,” she says. “And they’re working
incredibly hard to begin with. I get it.” Carolina Ibáñez, a Spanish teacher at Leadership,
said she always tried to engage with students one on one but acknowledged that if there
was a conflict, sometimes she “really did not want to have the conversation.” For her, the
challenge of restorative justice entailed internalizing that “being a teacher means
addressing more than what’s in the book. To get to the book, you really have to address
the child’s emotional state first.” Even more challenging, Dunlevy says, the shift requires
teachers to rethink the very concept of justice, rejecting a model of punishment in which
most were trained and most likely raised When the school year ended in 2014,
there were 140 total suspensions at Leadership, down from 230 the previous
year.
75
Advantage Answers
76
General Fairness/Due Process Answers
Defense counsel protects the interests of the defendant
The Judicial System, p. 631
The requirement of counsel supports a notion of fairness in the plea bargaining process. n28 The
presence of defense counsel during plea negotiations also increases the likelihood that the
defendant will enter his plea knowingly and intelligently. n29
Plea bargaining can push information to defendants
Market, p. 556
Other proposals have less prospect of assisting defendants. Think of mandatory disclosure.
There's already a good deal of this in criminal procedure (think Rule 16 of the Federal Rules of
Criminal Procedure and state analogs). Many prosecutors open their files, seeing it as a way to
induce pleas. And reducing the uncertainty about what the evidence will show brings the sides
together in criminal bargaining, just as in civil settlements. Defendants who want more
information can insist on it; prosecutors want pleas, indeed need pleas, so information will
be forthcoming if there is a demand for it. But forcing information on the defense won't
help. Remember United States v. Ruiz, n14 in which the prosecutor had a fast-track
program offering deep sentencing discounts in exchange for a speedy plea with no discovery
and no appeal. The Ninth Circuit held that defendants could get both the discount and
disclosures that might help set up a defense at trial. The Supreme Court reversed, for what the
Ninth Circuit had done was to destroy the fast-track program. Disclosure is one of those
entitlements that may be waived--and, as Ruiz observed, the constitutional entitlement to
exculpatory information is a trial right rather than a discovery right. Tinkering could make things
worse. The Ninth Circuit did make them worse, helping one defendant but injuring thousands of
others; defendants should be glad that the Supreme Court saved their bacon.
Supreme Court’s decisions in Lafler and ___ will improve the fairness of plea
bargaining
Wesley MacNeil Oliver, Associate Professor and Director of the Criminal Justice Program at
Duquesne University School of law, Summer 2013, Duquesne Law Review,
77
http://heinonline.org/HOL/LandingPage?handle=hein.journals/duqu51&div=33&id=&page=p.
639-41
The Supreme Court, however, has a unique bully pulpit to influence a lawyer's conduct,
partially because of its visibility. While a number of lower courts prior to Lafler and Frye had
recognized that a defendant could suffer prejudice from a lawyer's ineffective performance during
the negotiation process, there were few cases filed claiming attorney error during this phase. n28
In the year since these cases were decided, hundreds of reported decision address these claims. If
the threat of an ineffective assistance claim has any effect on an attorney's attention to his client,
then the risk of a client filing a claim for ineffective assistance during this phase went up
exponentially after these cases.
The symbolic effect of these high profile opinions, however, is likely to have a greater
impact. Prior to the Supreme Court's recognition in the 1970 case of Brady v. United States that a
defendant could legitimately enter a plea induced by a promise of leniency, plea bargaining was
frequently described as occurring underground. n29 While agreements after Brady were made
more openly, plea bargaining is still very much underground in the culture of the defense bar.
Defense lawyers are a very collegial group as a whole and readily share the tactics they have
developed in jury selection, cross examination, and opening and closing statements. Discussions
of the tactics of negotiation, and certainly the results obtained from negotiation, have been taboo
in defense lawyer conferences, despite the fact that the entire criminal justice system is driven by
guilty pleas. n30 Some high-profile defense lawyers even refuse to represent clients who are
accepting guilty pleas, particularly if those clients are cooperating with the government, though
they typically hand their clients off to other counsel to enter the plea they would not sully their
reputations by entering.
The Supreme Court's assertion that defense counsel's Sixth Amendment duty to his client
includes effective negotiation has the potential to change the culture of the defense bar as it
undermines the caste of illegitimacy plea bargaining has had in the defense bar culture. And if
defense lawyers begin to talk openly about the tactics of negotiation, and the substance of the
deals they are obtaining, the entire defense bar will be better equipped to represent clients at this
phase. Those who believe they are uniquely able to obtain deals with prosecutors because of their
personal relationships may still be unwilling to participate in this sharing of information, but there
are plenty of reasons for defense lawyers to relate the results they are obtaining. Pleas are entered
in open court, so defense counsel is hardly burning a bridge with a prosecutor by adding a single
publicly-announced data point. Further, by participating in such information sharing, the defense
lawyer is able to obtain information about deals with prosecutors other than those with whom he
regularly deals. Such changes in the culture of the defense bar, which Lafler and Frye may
facilitate, will improve the quality of representation for defendants and increase the transparency
in the process.
The decisions also hold the potential to increase judicial oversight over both the charging and
plea bargaining process. The Court in Lafler v. Cooper left trial courts with extraordinary
discretion to fashion a remedy when they find defense counsel performed inadequately during the
plea phase to his client's detriment. n32 Lower courts were instructed to use their equitable
discretion to provide a remedy that does not grant a defendant a windfall. n33 In fashioning this
remedy in cases like Lafler, courts will seemingly have to look at why a reasonable prosecutor
would have made the offer that the defendant did not accept because of counsel's failures. In
78
reasoning toward the remedy they grant, courts will essentially be providing guidelines for the
exercise of prosecutorial discretion.
In Lafler, the Court concluded that a defendant was prejudiced by his attorney's advice to go
to trial based on legally incorrect advice that he could not be convicted of assault with intent to
kill. n34 The defendant went to trial, was convicted, and received a sentence considerably greater
than the one offered by the prosecutor that was rejected because of the defense lawyer's
egregiously incorrect legal advice. n35 The Supreme Court held that if a defendant can show that
but for his counsel's errors, he would have agreed to take an offer, that the prosecutor would not
have revoked the offer before it was accepted, and that the trial court would have accepted it, then
a habeas petition has made out a successful claim for ineffective assistance of counsel. n36 The
Court did not, however, say what the remedy should be. In fact, it refused to announce either the
appropriate remedy in Lafler, or a test to determine the appropriate remedy. The Court left to the
lower courts the task of determining the appropriate remedy.
While the Court's guidance to lower courts was vague, it was not non-existent. Lower courts
were instructed that they were not to grant defendants windfalls. n37 This is consistent with the
Court's admonition in Strickland v. Washington and Lockhart v. Fretwell that habeas petitioners'
claims of ineffective assistance of counsel are only entitled to outcomes that reflect fundamental
fairness. n38
In Judge Easterbrook's introduction to this conference, he suggested that granting a habeas
petitioner any remedy once he has rejected a plea and gone to trial provides a windfall. n39
Starting with Easterbrook's premise, this true. He suggests that prosecutors only agree to grant
leniency in the plea process when there is some risk that they will lose if they go to trial. n40 It is
certainly true that if the defendant has been convicted, it grants the defendant a windfall to allow
him to exchange a now-non-existent risk of acquittal for leniency. But this is just another way of
saying that prosecutors are engaging in quid pro quo exchanges when granting defendants
leniency in exchange for the certainty of a conviction. Quid pro quo exchanges are actually a
windfall to the defendant before, as well as after, the trial. Difficulties in proving the
prosecution's case have nothing to do with how a defendant ought to be punished. It is mere
happenstance there are complications in proving one particular defendant's case, but not in
another. In the plea process, they will be offered very different deals for reasons utterly unrelated
to their culpability.
In some ways, Judge Easterbrook's concerns about windfalls are even greater than he
recognizes. Quid pro quo exchanges in plea bargaining are not limited to offers motivated by a
prosecutor's concerns about losing a case. Prosecutors also offer leniency in the plea bargaining
process to conserve judicial and prosecutorial resources, to allow victims to avoid the emotional
toll of testifying, and to obtain cooperation from defendants. n41 As with a plea in which the
prosecution exchanges of a risk of acquittal for leniency, a defendant does not obtain a lighter
sentence because he is deserving of less punishment. When leniency is offered to obtain
cooperation, the opposite is in fact most often true. It is frequently noted that the Federal
Sentencing Guidelines, which allow substantial reductions for cooperation, allow more culpable
defendants to obtain lighter sentences than less culpable ones. n42 Drug kingpins have more
information than the mules they employ and are ironically rewarded at sentencing for the amount
of assistance they were able to provide.
79
Whenever a defendant uses a possibility of acquittal, inconvenience to the prosecutor, or an
offer of cooperation as a bargaining chip, he is engaging in a quid pro quo exchange. Judge
Easterbrook is surely correct to conclude that a plea offer, lost because of counsel's
ineffectiveness, should not be restored in any manner, when it was motivated by a quid pro quo
exchange unrelated to a defendant's culpability.
Not all plea bargains, however, are driven by quid pro quo exchanges. Prosecutors often
make offers that are driven by their sense that the offer represents an appropriate sentence. n43
The case of Bordenkircher v. Hayes is an excellent example of this fact. n44 Paul Hayes was
charged with forging and uttering a check for $ 88.30. Under Kentucky law at the time, this was a
felony punishable by two to ten years at hard labor, but a judge would have had the authority to
grant probation for the entire term. Because of Hayes' past and Kentucky's three-strikes law,
Hayes was eligible for a life sentence. The prosecutor offered Hayes a deal: five years at hard
labor, or he would seek to have his sentence enhanced under the three-strikes provision. n45
As severe as five years sounds for forging and uttering a check for $ 88.30, n46 the
prosecutor in Hayes' case appears to have been driven by his sense that this was the equitably
appropriate sentence. It would have taken no time to try this case and there was virtually no risk
of an acquittal. n47 There was a single witness to the theft who was certain about the
identification. n48 Hayes was not asked to cooperate in exchange for the deal and, as he acted
alone, cooperation would not have been a real possibility--at least not for this particular crime.
The check was taken from a convenience store, so there would have been almost no emotional
toll on the witness to describe what he saw. The prosecutor appears to have concluded that five
years for this crime, combined with Hayes' prior crimes of detaining a female (a lesser included
offense of rape) and armed robbery (for which he was on probation at the time of the forgery and
uttering) was an appropriate sentence. n49 There are certainly design flaws in a system which
allows a prosecutor to determine what he alone believes to be a just sentence and obtain the
defendant's agreement as to its fairness by threatening a much graver consequence. n50 This is
nevertheless the American criminal justice system. In any given case, broad statutes permit
prosecutors to bring charges far in excess of anything that they (or anyone) would regard to be a
reasonable result.
In some cases, as it seems to have been so in Bordenkircher, prosecutors are motivated by
equitable considerations to grant leniency. In most cases, however, leniency in plea offers is
likely driven by a combination of quid pro quo and equitable considerations. n52 If lower courts
are to carry out the Supreme Court's mandate of granting a remedy to defendants without a
windfall, they will have to determine what amount of the offer that counsel's ineffectiveness
prevented the defendant from accepting, was attributable to equitable considerations. This
analysis will provide courts an obligation--but more importantly, an opportunity--to describe how
reasonable prosecutors go about granting leniency in light of various considerations.
These discussions will provide much needed guidance to the most important, and most
powerful actors in the criminal justice system: prosecutors. Sentencing guidelines were developed
at the federal and state levels to even out inconsistencies between judges. n53 The potential for
inconsistent treatment at the hands of a sentencing judge, even before the guidelines, however, is
dwarfed by the potential for inconsistent treatment by prosecutors. Sentencing hearings have
always occurred in public, on the record, and been subject to some sort of appellate review.
Judges have long felt an obligation to explain the reasons for their sentences both to the defendant
80
standing before them and to the public at large. There is no mechanism for even determining the
rationale for prosecutorial charging decisions and plea offers. Some prosecutors, like some
judges, are more lenient than others. As the reasoning of prosecutors is never disclosed, there is
no opportunity to even consider the validity of their decisions or the consistency in their exercise
of judgment. Whatever inconsistency exists, be it driven by legitimate difference in philosophy,
or illegitimate considerations such as the relationship between the defense lawyer and prosecutor,
is very difficult to discover when the prosecutors have to explain nothing about their decisions.
Judges have long avoided second-guessing prosecutorial charging decisions--and by
extension the appropriateness of the amount of leniency offered in a plea--because of separation
of powers considerations. n54 In crafting remedies for situations like the one before the Court in
Lafler, the Court will thus be identifying the type of considerations a reasonable prosecutor would
take into account in making charging and bargaining decisions. n55 Fidelity to the Supreme
Court's opinion will not necessarily require lower courts to identify the portions of the plea
attributable to each of the possible quid pro quo exchanges that could have animated the plea
offer. Lower courts will merely be required to make an assessment of the extent of the leniency
attributable to equitable consideration, as opposed to the portion of the plea attributable solely to
a quid pro quo exchange.
Evaluating how a prosecutor should have viewed the equities in a particular case, however,
will start a conversation about the appropriate use of prosecutorial discretion. This is not say that
judges--or certainly any one judge considering a habeas petition--will have a lock on the
appropriate use of prosecutorial power. Decisions offering a judge's view of how a reasonable
prosecutor would have viewed the facts of a particular case, however, begin a conversation about
the exercise of this power. Prosecutors, and judges reviewing subsequent habeas petitions, are
certainly capable of disagreeing with any one judge's assessment of how a reasonable prosecutor
would have, or should have, accounted for the particular attributes of a case. This, however, is the
genius of the common law. It is a forum for discussion and even public comment.
The vaguely articulated remedy in Lafler appears to require and enable lower courts to make
the appropriate exercise of prosecutorial discretion a matter of public consideration. Certainly,
prosecutors would not be bound by judicial considerations, but these considerations would
provide a starting point from which prosecutors would feel pressure to justify departures.
Lafler and Frye recognized the reality that modern criminal practice is the negotiation
process and encouraged the development of a better process of plea bargaining in a way that did
not intrude on the long-recognized prosecutorial prerogative. The cases therefore create
circumstances permitting the development of an advisory common law of plea bargaining and
motivate defense counsel to perfect their skills in this forum, just as they have long honed their
talents in the traditional adversarial forums. Lafler and Frye thus may indeed be viewed as
landmark decisions through the lens of history for their indirect impact on the criminal justice
system.
81
Disadvantage Links
82
83
Terrorism DA Shell
Plea bargaining saves prosecutorial resources, enabling them to pursue more

cases
Frank H. Easterbrook, Chief Judge, United States Court of Appeals for the Seventh Circuit;
Market, p. 552
People are bound to bargain. Defendants are risk averse and prefer the certainty of a
year in prison to a 50/50 or 90/10 chance of a longer term. For many defendants the rights
afforded by rules of criminal procedure have little value at trial but considerable value in trade;
they can sell their rights back to prosecutors by dealing for shorter sentences through a guilty
plea. Prosecutors have limited budgets and want to induce guilty pleas so that they can
bring more cases, using the resources released when they don't have to take each defendant
to trial. Both sides gain. So does society. It's as if there were an invisible hand . . . Try to
regulate one contractual term and others adjust. In commercial law, if a regulator sets the price
term, then quality terms adjust--and, to be clear, judges are the regulators with the broadest
portfolios, and thus the least knowledge, because we are not specialists. If regulators try to set not
price but quality, price adjusts. If regulators try to set price and quality, something else adjusts.
Self-interested people are determined, and lawyers are clever. It is easy to use the legal system to
set one or another term but almost impossible to use the power to make either side better off. As
one of my judicial colleagues wrote: The idea that favoring one side or the other in a class of
contract disputes can redistribute wealth is one of the most persistent illusions of judicial power.
It comes from failing to consider the full consequences of legal decisions. Courts deciding
contract cases cannot durably shift the balance of advantages to the weaker side of the market;
they can only make contracts more costly to that side in the future, because [the other side] will
demand compensation for bearing onerous terms. n2
Expanding more prosecutorial resources on existing cases trades-off,

undermining the war on terrorism
Christopher Zalesky, Spring 2016, Journal of Health Law, Pharmaceutical Marketing Practices:
Balancing Public Health and Law Enforcement Interests; Moving Beyond Regulation-Through-
Litigation, p. 235
The DOJ and the HHS OIG collaborate to pursue prosecution of healthcare fraud, fulfilling
their responsibilities under the HIPAA Fraud and Abuse Control Program (including
responsibilities for pharmaceutical marketing fraud and abuse). n54 Because DOJ is the lead law
enforcement agency in the United States, it has many other responsibilities beyond healthcare
fraud prosecutions. n55 Its resources are vast. The DOJ employs approximately 110,000 people
and has an annual budget of approximately $ 20 billion. n56 Its key priorities include:
84
preventing terrorism; enforcing federal law; assisting state and local governments to reduce
crime and violence; and ensuring the federal justice system is operated efficiently. n57
Though considerable, its resources are limited; thus, its healthcare fraud prosecution efforts
compete directly for the same resources dedicated to the war on terrorism and other
important law enforcement priorities.
Effective prosecution of terrorism needed to dry up funds and arrest

international terrorism
Bruce Zagaris is a partner at Berliner, Corcoran & Rowe, L.L.P. in Washington, D.C., Winter 2011,
INTERNATIONAL ENFORCEMENT LAW TRENDS FOR 2010 AND BEYOND: CAN THE COPS KEEP UP
WITH THE CRIMINALS?, p. 2-3
The modern economy, globalization, and new technologies facilitate the spread of
transnational crime, especially economic crime. The fact that new types of substantive
international crimes emerge every decade, such as cybercrimes and money laundering, is a
recent phenomenon. Just as importantly, the procedural aspects of international criminal law continue to grow. 4 For instance, the
interplay of free trade and economic integration is a double-edged sword. On the one hand, to the extent free trade agreements
(FTAs) and economic integration do not confront criminal cooperation and justice, they facilitate the growth of transnational crime.
On the other hand, to the extent FTAs and economic integration do confront these issues within the agreement, as is the case with
the pacts governing economic cooperation within the European Union, they become a laboratory for cutting-edge international
criminal cooperation and criminal justice developments. Another essential and dynamic component of international criminal law is
the evolving framework of institutions. The dramatic growth of broad criminal justice agendas within traditional international
institutions like the Organization of Economic Cooperation and Development (OECD) and multilateral development banks led by the
World Bank Group continues [*3] to make criminal law a growth sector. Concomitantly, the international community is increasingly
establishing informal groups, such as the G8, G20, Financial Action Task Force, and the Egmont Group, to deal with various
international criminal groups. 5 Just as important has been the rise of national institutions throughout the world, such as counter-
drug enforcement agencies, financial intelligence units, and asset forfeiture agencies. 6 A. Environment Giving Rise to International
Economic Crimes Contemporary transnational criminals take advantage of globalization, trade
liberalization, and emerging new technologies to commit a diverse range of crimes, and to
move money, goods, services, and people for purposes of pure economic gain or political
violence. 7 A key component facilitating international white collar crime is trade liberalization, especially FTAs. The problem is
that the lack of foresight, leadership, and favorable politics prevents trade negotiators from providing for comprehensive
enforcement mechanisms. These comprehensive enforcement mechanisms are consequently completely omitted or treated as
isolated subjects. For instance, in the North American Free Trade Agreement (NAFTA), there is a section on intellectual property
enforcement and a handful of provisions on customs cooperation and enforcement. 8 Customs enforcement is a subject that FTAs
normally [*4] cover. However, the coverage of intellectual property (IP) enforcement reflects the strong influence in the United
States of IP groups. As a result of failing to include comprehensive enforcement provisions in FTAs, criminals, including individuals
and organizations, are able to take advantage of FTAs to conduct their criminal activities. FTA members usually became aware of the
growth of criminal problems arising out of FTAs several years later. 9 They then try to develop ad hoc enforcement agreements and
arrangements. These agreements and arrangements usually have a narrower scope than the FTAs, usually lack institutional support,
and sometimes overlap. 10 As a result, the international enforcement architecture arising out of FTAs cannot sustain enforcement
needs. Transnational criminal groups and criminals live and operate in a borderless world. Increasingly, transnational criminals are
diversifying their crimes, instrumentalities, markets, and networks. Their intelligence networks and the coincidence of economic and
political power enable them to quickly adapt and operate in "gray areas" where governments do not effectively control their
territories, such as Afghanistan and parts of Pakistan and Yemen. 11 Transnational criminals can also operate surreptitiously through
the use of sleeper cells. 12 While national governments have determined that transnational organized crime and terrorism are
national security threats and have implemented various initiatives to combat them, 13 they are continuously and actively seeking
more significant political and legal initiatives to establish effective international enforcement regimes. Some policymakers believe
that effectively combating new transnational crimes requires significant transformations in [*5] national legal systems. 14 In fact,
the international community and individual countries such as the United States have enacted
a substantial amount of new legislation and developed initiatives to combat new
85
transnational crimes, in areas such as cybercrime, intellectual property, international tax, terrorism, and
organized crime. 15 Cybercrime exemplifies the difficulty of trying to keep pace with the tremendous changes in technology
that have enabled criminals to perpetrate diverse crimes, such as financial fraud, identity theft, pornography, hate crimes, and a vast
range of other offenses. The international community is struggling to develop an enforcement regime that can use the new
technology to assist in the identification, investigation, and prosecution of cybercriminals. In this regard, the proposed Council of
Europe Convention Against Cybercrime provides a strong potential mechanism. 16 Intellectual property and counterfeiting crimes
have also grown tremendously in recent decades. Criminals counterfeit everything from software to cosmetics and clothing,
including nearly every product that is sold internationally. The international community and governments have tried a combination
of international trade law, such as Trade in Related Intellectual Property Services (TRIPS) and NAFTA, to criminalize violations of
transnational intellectual property. 17 For instance, the U.S. trade associations such as the International Intellectual Property
Association and the Motion Picture Association of [*6] America have pressured the U.S. government to bring an action against
Mexico because of the alleged lack of criminal action by the Mexican Government against persons who intentionally violate
intellectual property law. 18 Indeed, these same U.S. trade associations succeeded in persuading the NAFTA signatories to include
provisions requiring criminal prosecution and civil action against violators of intellectual property law - the only part of NAFTA that
allows for criminal sanctions. 19 Money laundering is an example of the type of crime that governments and the international
community have only criminalized since the mid-1980s. Through international conventions, such as the 1988 U.N. Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and the 1990 Council of Europe Convention on Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime, the international community has extended the use of a new anti-
money laundering enforcement regime to the entire world. 20 Signatories are required to criminalize laundering offenses and
initiate asset forfeiture and confiscation as remedies. These conventions require a broad range of international enforcement
cooperation, including evidence gathering and extradition, and also suggest a range of more customized bilateral cooperation
agreements. 21 Institutionally, the new crime of money laundering has spawned the establishment of financial investigative (or
intelligence) units (FIUs) around the world and the Egmont Group, an association of FIUs that meets regularly to facilitate
cooperation among FIUs and develops uniform approaches to core issues. Anti-money laundering has also given rise to new
organizations and groups, such as the Financial Action Task Force on Anti-Money Laundering (FATF). Growing out of the G8
meetings, FATF has developed cutting edge requirements on legal, financial, [*7] and external relations with respect to anti-money
laundering. 22 Unfortunately, the erosion of bank and financial privacy has been among the many legal transformations brought
about by anti-money laundering laws. 23 Inthe aftermath of September 11, 2001, the emphasis of the
U.S. government and the international community on counterterrorism financial enforcement
has increased. 24 The U.S. government has initiated a comprehensive financial strategy aimed
at detecting and preventing, through financial movements, transnational terrorist movements
and plans. The strategy is designed to investigate, prosecute and seize terrorist assets by applying the anti-money laundering
due diligence requirements commonly used by the private sector to counterterrorism. Simultaneously, the United States is applying
economic sanctions to terrorists. 25 The U.S. strategy seeks to develop a comprehensive, international counterterrorism financial
enforcement regime.
They’ll use CBRNs---increasingly likely and each causes extinction.

-security studies underestimates risk by assuming use in traditional and conventional settings
-motive and capability
-they exploit weak states
Krstic 17. (Marko M. Krstic, Ministry of Internal Affairs of the Republic of Serbia. Published in
the Military Techinical Courier--Vol 65, Issue 2--a multidisciplinary scientific journal of the
Ministry of Defence of the Republic of Serbia. TENDENCY OF USING CHEMICAL, BIOLOGICAL,
RADIOLOGICAL AND NUCLEAR WEAPONS FOR TERRORIST PURPOSES. 2017. scindeks-
clanci.ceon.rs/data/pdf/0042-8469/2017/0042-84691702481K.pdf) **CBRN = Chemical,
Biological, Radiological, Nuclear
86
The studies of a few cases of earlier CBRN actions have led experts to identify the key characteristics of terrorist groups that could potentially have an
interest to use these weapons. It is thought that conservatism is inherent in terrorist organizations, but it must not be forgotten that some
terrorists are inclined to innovations in weapons and tactics, as well as to taking risks in actions
or in the choice of weapons. Many experts agree that most terrorist organizations want to use proven methods to achieve desired
effects. Innovations, especially in the field of CBRN weapons, often indicate terrorists are likely to be led by other factors rather than by pure curiosity
and desire to experiment. For some individuals, repression and democratic and strong rule of law are positive determinants of the emergence of CBRN
actions which points to a new and more complex global security environment with an increasing risk of terrorists trying to perform a CBRN attack. It is a
frightening fact that a
single terrorist or isolated terrorist group could improvise a biological weapon or
use other ways to spread anthrax, smallpox or other biological agents and thereby cause mass
casualties and destroy the health care system of a state. CBRN weapons are secretly shipped to
terrorists or hostile governments and represent a significant and growing threat to many countries.
Although the threat of CBRN attacks is widely recognized as the central issue of national
security, most analysts assume that the primary danger is a threat of the military use of these
weapons in conventional wars with tra-ditional military means while the threat of covert attacks, which
include terrorism, is rashly and unfairly neglected. Covert attacks are difficult to deter or
prevent and CBRN weapons suitable for this type of attack are available to a growing number
of enemy states and groups. At the same time, restrictions on their use appear to be diminishing, and
so-called new terrorists do not always escalate and become apparent only by using
unconventional weapons. These weapons are easily spread or transmitted from person to person,
have a high mortality rate and a potential impact on public health, causing mass casualties that can crush health
systems and cause public panic and social disruption, thus requiring special efforts to suppress them. When assessing the threat of CBRN weapons, we
should take into account the
change in capacity to carry out terrorist attacks that are on the rise among
countries and non-government elements. Analysts believe that the fear of chemical and biological terrorist attacks is excessive,
they point out that, in the past, very few attacks involved these weapons, and even those few attempts that have occurred were mostly thwarted by
the authorities. A relative ease with which biological weapons can be obtained, along with other
current changes and turbulences in the world, sets the stage for another type of warfare in
the 21st century. The potential for CBRN terrorism has widely grown since 11 September, when some of these
materials were used. The danger of terrorist use of nuclear weapons and other weapons of mass
destruction represents a very serious threat for many countries; if a terrorist group could gain access
to this weapon, it is highly likely it would use it, or threaten to use it. Although there is very little information
on terrorists and their ability to come into possession of nuclear weapons or on their intentions to get them, the risk of CBRN weapons
has certainly increased since the terrorists started to become more familiar with these agents
and their harmful consequences. Discovering the nature of the threat of biological weapons, as well as the appropriate response to
them requires an emphasis on the biological characteristics of these instruments of war and terror. Preparing for a terrorist attack may seem daunting
and there are a small number of people with practical experience and a good knowledge of CBRN weapons, because until recently there was no need to
own them. In the past, most of the planning regarding emergency response to terrorism concentrated on the concerns of open attacks (bombing).
However, the threats of CBRN weapons are taken seriously, especially in the USA, where media, fascinated by new weapons of mass destruction,
encourage a growing fear for public safety. Terrorists who have significant human and material resources are much more likely to realize their
intentions than lone perpetrators or small terrorist groups. A CBRN terrorism threat is certainly a matter of concern; however, terrorists will face many
obstacles in the implementation of an attack of this kind. This includes the acquisition of materials and preparation for spreading them as well as a
selection and a survey of a chosen objective and a correct dose required to achieve a desired effect. The growing threat of CBRN terrorism Terrorism
can be defined as a deliberate act of violence intended to cause damage, but also to create an appropriate political and ideological situation, so that the
use of these non-traditional weapons of terror outside the context is obvious, and the goals will not be military, but civilian ones (Bioterrorism,
chemical weapons, and radiation terrorism, nd). Toxic substances, regardless of whether they are of animal, vegetable or mineral origin, were used
throughout the history for political assassinations and sabotage; despite the risk of severe penalties, the prospects for success favoured the use of toxic
substances. Such use has always been reduced, however, since only a small number of people had access to substances and possessed the ability of
learn how to use them (Pascal, 1999). CBRN
weapons are rightly viewed with a special sense of horror, their effects can be
devastating and indiscriminating, and they take the most stringent toll among the most
vulnerable population, non-combatants (e.g. a biological attack cannot be detected sufficiently
fast after the disease spreads through the population). Moreover, chemical and biological weapons
87
are a particularly attractive alternative for groups that do not have the ability to produce nuclear
weapons, and this risk raises complex but important ethical issues (London, 2003). The common name for CBRN terrorism which causes the death
of a large number of people, large scale damage and a strong echo worldwide is post-industrial or hyper-terrorism. This means that non-state elements
possess and dispose of assets that were previously held only by states, but unlike them, which often fear reprisals after WMD attacks, terrorists, having
no geographical location, are ready to use WMD with much less scrupulousness and fear (Kurmnik, Ribnikar, 2003). Some authors have described the
factors that make chemical, biological, radiological and nuclear terrorist attacks in many ways
unique and demanding, such as an element of surprise, invisible agents, ordnance, the risk of
repetition and new types of risks (Ruggiero, Voss, 2015). In the past 30 years, the use of CBRN weapons has become a major
concern for many nations around the world. The public has become insensitive to traditional terrorist attacks that seem to be a less efficient way for
terrorist organizations to achieve their goals. What causes shock and fear is actually presenting the properties of weapons which can be used by
terrorist organizations to enhance their efforts and the effectiveness of attacks. CBRN terrorism is often a synonym for weapons of mass destruction,
although this form of terrorism and related incidents do not require attacks and inflicting harm to large numbers of people - they do not even require
deadly attacks at all. The number of studies on this type of terrorism is limited due to the lack of available data on this terrorism type. There is a very
small number of databases of CBRN incidents, and even the existing ones have relatively little to do with them and they are compared to conventional
terrorism (Jesse, 2012). Some experts emphasize the factors that promote such attacks and these factors include the availability of information and
expertise, increased frustration of terrorists, demonization of the target population, as well as a millennial, apocalyptic or messianic vision. Experts also
differ in opinion when it comes to possible perpetrators of CBRN incidents, and include religious fundamentalists and cults1 as possible perpetrators of
such attacks, especially when these groups address to ethereal audience, emphasizing the hatred of unbelievers (Ivanova, Sandler, 2007). Concerns
about super terrorism which involves the use of CBRN weapons are mainly focused on what terrorists can do in the context of our social reality, with an
emphasis on terrorist motivations, initiatives and limitations. When considering which terrorist groups may be inclined to commit CBRN terrorism, it is
important to recognize the spectrum of these acts, as well as to analyze the following categorization: (a) massive casualty events produced by
conventional weapons; (b) CBRN scams; (c) conventional attack on a nuclear facility; (d) limited-scale chemical or biological attack or a radiological
dispersion; (e) large scale chemical or biological attack or a radiological dispersion; and (f) CBRN strikes (super terrorism) that can lead to thousands of
victims. In addition to the motivation and willingness to inflict mass casualties in any way, terrorists must have technical and financial capabilities to
come into possession of material and acquire skills for these types of weapons and materials and carry out a successful attack. Chemical and biological
weapons can pose a risk to terrorists thus deterring them from using such weapons (Post, 2005, pp.148-151). The possibility that terrorists use chemical
or biological substances may increase over the next decade, according to US intelligence agencies. According to CIA2 , an interest among
non-state actors, including terrorists, for biological and chemical materials is real and growing,
and the number of potential perpetrators is increasing. The agency also noted that many of these groups
had developed an international network and did not need to rely on state sponsors for financial
and technical support. However, it is believed that it is less likely that terrorists would choose chemical and biological weapons over
conventional explosives, because these weapons are difficult to control and their results are unpredictable (Condesman, Burke, 2001). The risk of
CBRN weapons is growing since terrorists are better acquainted with these agents and their
potential for causing harm3 . These agents possess desirable characteristics as weapons of terror; they are biologically invisible to the
naked eye, odorless and potentially lethal in the form of particles; natural organisms are so readily available, and can be "camouflaged" in natural
disasters and used to spread fear and various diseases. Chemical agents quickly attack the critical physiological centers of the body, disabling or killing
the victim. Biological and chemical weapons require the application of huge amounts of resources and result in different effects, causing fear and panic
in the contaminated areas. Often referred to as "weapons of mass destruction", but, in medical terms, they are weapons of potential mass casualties
because they can lead to massive death toll in the absence of preventive measures and timely response (Meyer, Spinella, 2014, pp.645-656).
"Bioterrorism is the intentional use of microorganisms or toxins derived from living organisms used for hostile purposes intended to cause disease or
death in man, animals and plants, on which they depend". The
threat of bioterrorist attacks is real, and each
individual is a potential terrorist, when terrorists are "invisible" prior to an attack which also can
be "invisible" in the form of causing infectious disea-ses or epidemics. Citizens who are not
aware they are infected are potential safety hazard and so-called dangerous bodies (Mijalković, 2011).
In the last ten years, the issue of CBRN weapons has attracted the attention of experts, but a list of priorities by the heads of states has never been
established. Biological weapons almost became forgotten after they had been banned by the 1972 Convention on Biological Weapons. A significant
attention was paid to them during the 90s of the last century. The
important thing is that biological weapons attract
much less attention than other similar weapons, but probably represent the greatest danger,
and in addition to their use in war, they are available as instruments of terror in peace. Some
countries showed willingness to use such weapons against defenseless populations to achieve strategic objectives, and in this regard, some analysts
believe that those who attacked the World Trade Center in 1993 applied cyanide on their bombs (this was not confirmed, but a large amount of cyanide
was found in possession of the perpetrators). Such a group will prove to be less inefficient, because if terrorists decide to shock and surprise the
government by inflicting enormous damage, CBRN weapons will become more attractive and more accessible (Bettis, 1998). Motives and forms of
behavior of individuals and groups who acquired or used CBRN weapons have existed since long ago and there is no doubt that modern society is
vulnerable to such attacks (Tucker, 2000). Fear of biological terrorism is certainly greater than the fear of the conventional forms of terrorism; some of
these fears are justified and some are often exaggerated. Some agents are really very contagious and deadly, and if
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used properly, have a potential to result in casualties similar to those in a nuclear attack. Perhaps the
scariest aspect of biological weapons is that the body is attacked without warning, people are afraid of the threat as it is invisible, and cannot be heard
or felt. The history of warfare, terrorism and crime involving biological agents in the last century is considerably less dangerous and more deadly than
the history of conventional warfare (Parachini, 2001). Today,
some states and some terrorist groups can more easily
overcome technological barriers due to the increased flow of information and access to
previously unavailable technologies. Along with nuclear and chemical weapons, biological
weapons are part of an unholy trinity of weapons of mass destruction (Davis, Johnson-Winegar, 2000, pp.15-
28). The society is now faced with the threat of an apocalyptic and asymmetric war scenario in
which kamikaze attackers are able to arm themselves with WMD4 without even having to have a "physical"
weapon to create fear; they probably still prefer simple, proven methods: a stampede in an enclosed place, or just an explosive device, which will kill
many people5 (Palmer, 2004, pp.3-9). Early detection and response to biological or chemical terrorism are crucial to solving this problem (U.S. Congress
House, 2003, p.117).
Turns case -- Attacks cause international lashout and domestic crackdown and
discrimination w---decks alliances and encourages radicalization
Daniel L Byman 17, senior fellow in the Center for Middle East Policy at Brookings, PhD from
MIT, 5/3/2017, https://www.brookings.edu/blog/markaz/2017/05/03/trump-and-the-next-
terrorist-attack/
The best response in the hours after an attack involves a mix of rhetoric, leadership, and caution. The president should publicly
honor the dead and reassure Americans that the government is working to hunt down the guilty and care for those injured. At the
same time, he should point out that American Muslims have proven vital allies against terrorism. As FBI Director James Comey put it,
“They do not want people committing violence, either in their community or in the name of their faith, and so some of our most
productive relationships are with people who see things and tell us things who happen to be Muslim.” Almost half of all tips on
extremism come from the community.¶ An
immediate retaliatory strike—one that on its surface would signal
toughness and thus be attractive to a president who talks about toughness a lot—might be a mistake.
Initial information on responsibility or the extent of overseas links is often flawed or incomplete,
and it is useful for the administration to assess a full range of options before plunging in. Since
the Trump administration is already hitting the Islamic State hard, it’s difficult to imagine an
easy way to ratchet up the pressure that does not involve significant costs or downsides. Instead, various agencies
should be scrutinizing intelligence and security procedures to determine culpability and identify real and potential holes while the
military and intelligence agencies assess options overseas. ¶ Based on his initial record in office and rhetoric on the campaign trail,
however, Trump might opt for a disastrous approach. The president acts out of impulse, whether
this involves sarcastic tweets to Arnold Schwartzenegger or the sudden decision to bomb Syria after the
regime’s use of chemical weapons. It’s safe to say that restraint and deliberation are not
characteristics of this administration—or the man himself. Perhaps even worse, this administration has a track record
of mismanaging policy processes. This includes signature items like the “Muslim Ban” executive order or less prominent but
important announcements, like the supposed deployment of an aircraft carrier to Korea .
This bungling and the
president’s many about-faces on issues have damaged his credibility as a messenger and are
likely to make people more skeptical of the content of his statements and actions in the
aftermath of a terrorist attack.¶ The president is likely to want to overreact abroad. He seems to
want to appear tough more than he wants to be effective. So he boasted, for example, about
dropping a massive bomb on Islamic State targets in Afghanistan without waiting to learn
whether it achieved its objectives. On the campaign trail, the president wanted to “bomb the
shit out of them” even though it was not clear an increase in the scale of bombing would
achieve much. Trump might also expand the war, bringing it to new zones that have only a tenuous Islamic State
89
or al-Qaida presence. He has already authorized the intensification of US operations targeting

Shabaab and increased the pace of strikes targeting terrorist groups more generally. ¶ Even more
worrisome is what the President might do at home. On the campaign trail, the President repeatedly
conflated Muslims and terrorists, and with tensions and emotions running high after an attack
this demonization might be especially likely. In the name of border security, he might further limit
immigration and travel from Muslim-majority countries or try to single out Muslims over other
faith communities. He might embrace the decision to declare the Muslim Brotherhood a terrorist
group even though this would be counterproductive and cause difficulties with several allies.
Surveillance of Muslim communities around the country might be stepped up, further alienating
Muslims from law enforcement and make them less likely to turn in suspected terrorists. After
9/11, the United States detained over one thousand Muslims, gaining almost no useful
intelligence but harming relations with the community. As Daniel Benjamin, a former senior counterterrorism
official, warns, “Repairing the damage from that crackdown took years.” ¶ Such unthinking measures might benefit
Trump politically while inadvertently helping the terrorists operationally. Trump would look tough, and
his argument that the terrorism danger is high and Muslims are the enemy would be vindicated, at least to his supporters and to
some who are undecided on this question. The
Islamic State would gain more evidence to back up the
narrative that the United States is hostile to Muslims, while the vast majority of Muslims who
loath the group would be less eager to work against it because it means working with what they
see as a hostile government. It’s just the American people who would suffer.
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Extensions – Lashout Impact

Lashout causes global war within a week
Daniel Hayes 15, M.F.A Sarah Lawrence College, 12/28/15, “What It Would Look Like If We
Just Decided To ‘Screw It’ And Nuke ISIS,” http://thoughtcatalog.com/daniel-
hayes/2015/12/what-it-would-look-like-if-we-just-decided-screw-it-and-nuked-isis/
So, President Nukem has spread hot, impatient freedom all over the Middle East and killed, lets’ be
frank, likely several million people over the coming weeks and months. He’s wiped out some ISIS fighters (there’s only
30,000) but mostly he’s killed regular people. But still, that was cathartic and that’s go to be worth something, right? Surely the rest
of the world will understand why the U.S. did this? Surprisingly, they wouldn’t. The
results of nuking any place at all in
the Middle East would likely be broad Muslim outrage and horror that would make ISIS the most
popular Muslim organization in the world. Every U.S. embassy in the Middle East would likely be
destroyed and all our diplomats killed. American citizens would be murdered in the streets and all across Europe you’d
have formerly peaceful Muslims becoming radicalized. But what about our allies? Oh, we wouldn’t have any allies
anymore. It’s a funny thing, murdering millions of people because you’re impatient with the
degradation of a terrorist organization isn’t generally viewed as a valid reason to deploy nuclear
weapons on civilians. You can pretty much bet the farm that every nation in the world would deploy
sanctions agains the U.S. and we would be 100% diplomatically and economically isolated by
the end of the week. We’d be booted from the U.N., from NATO, and we’d have every other nation’s nukes
suddenly pointing us right in the face ready to kill us. The stock market would crash and by crash I
mean fall through the ground into the center of the Earth. Inflation would skyrocket and your money would soon
have almost no value at all. What’s more, you’d have fighting in the streets as outraged U.S. citizens (including this writer) declared
war against their own insane and genocidal government. 7. The Lesson Only the supremely ignorant talk about using nuclear
weapons against small groups of terrorists or non-aggressive nations who haven’t started a war for well over 100 years (Iran). This
isn’t serious talk but it is dangerous talk. Nuke talk makes angry people feel powerful and it gets people pumped up about just how
awesome they think they are but an
actual nuclear engagement like this would completely destroy the
country in every way and would risk setting off an exchange with the U.S. as a target.
91
Terrorism DA – Resource Trade-Off Links

DOJ resources are limited
Robinson, 2008, James K. Robinson, partner in the Business Fraud Group of

Cadwalader, Wickersham & Taft LLP, Washington, D.C; Assistant Attorney General
for the Criminal Division of the Department of Justice (1998-2001); United States
Attorney for the Eastern District of Michigan (1977-80); President of the National
Association of Former United States Attorneys (1984-85), Harvard Law & Policy
Review, Summer 2008, Restoring Public Confidence in the Fairness of the Department of Justice's
Criminal Justice Function
The exercise of prosecutorial discretion, a fundamental power of the Department, must serve
this mission. Carrying out such a mission necessarily involves making decisions about which
types of offenses will receive enforcement priority from the Department, and then, which cases
will be prosecuted and how they will be resolved. Whether the Department should allocate its
limited resources by concentrating its efforts on the war on terror, the war on drugs, street or
gun crimes, white collar crime, or pornography is a legitimate subject of public and political
debate, as are the proper balance between the law enforcement responsibilities of the states
and the federal government and the severity of punishment for crimes, including the use of the
federal death penalty.
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Terrorism DA – Resources Uniqueness
Scarce resources are committed to the war on terror now
Hannah Buxbaum, Spring 2016, Washington & Lee Law Review, Foreign Governments as
Plaintiffs in U.S. Courts and the Case Against "Judicial Imperialism", Professor of Law and
John E. Schiller Chair, Indiana University Maurer School of Law, p. 653
RICO's object is "not merely to compensate victims but to turn them into prosecutors, "private
attorneys general,' dedicated to eliminating racketeering activity." With scarce prosecutorial
resources in the U.S. largely committed to the war on terrorism, the "private attorneys general"
here are the ones motivated and able to pursue transnational organized crime directed against
foreign allies. 184
93
Court Clog Shell
Court resources are very limited, there are significant fiscal restraints now
W. Louis Sands, United States District Court, Middle District of Georgia, Summer 2013,
Duquesne Law Review, Plea Bargaining After Lafler and Frye: Keynote Address: Plea
Bargaining After Frye and Lafler, A Real Problem in Search of a Reasonable and Practical
Solution (Meeting the Challenges of Frye and Lafler, p. 543-5
I believe that it can be substantially argued that the majority of our highest court is beginning
to wrestle with the question of what constitutes fairness in the constitutional sense and in the
context of an acknowledged criminal justice reality--the vast majority of criminal cases, for all
kinds of reasons, are disposed of by plea, not by trial. Plea bargaining, then, as Justice
Kennedy observed, "is the criminal justice system." The Court did not, as some would have
preferred, criticize disposition by plea-bargaining as an inappropriate means of disposing of
criminal cases. The Court observed that plea-bargaining is good for both sides. Justice Scalia in
his dissent went further concluding in his view that plea-bargaining allows defendants to get
sentences they do not deserve. However, the Court's approval of plea-bargaining itself did not
mean that the court had no view or requirement as to what should be considered fair plea-
bargaining. At a minimum, Frye and Lafler teach that fairness in plea-bargaining for Sixth
Amendment purposes now includes effective assistance of counsel in plea-bargaining. How
limited is this new right? Is this just the beginning or is this where the Court's concern stops?
There is much to discuss at this conference. Is the right to be applied narrowly--that is, to only the
most egregious failings of counsel, such as in Frye and Lafler--or will, or should for that matter,
the right be more broadly interpreted and applied? Is the whole of plea bargaining under review?
All stakeholders have an interest in sound analysis and well-thought-out responses to the Court's
newly expressed interest in plea-bargaining, at least as to the role of defense counsel. By
implication, especially in connection with any likely remedy, the roles of the prosecutor and that
of the judge are also involved. The right might even more broadly involve an expanded role for
the defendant and because of statute or policy, even that of the victim in certain cases. And, of
course, the elephant always in the room is the Congress and/or state legislatures. We must also
keep in mind the fundamental requirements of federalism. The country's courts include
procedures that involve both clear separation and some intermingling of federal law and policy
and state law and policy. The responses need not be identical; they need not involve the same
approaches or adopt the same solutions. All courts are limited in resources, both in personnel
and finance, especially in the universally tight budgetary climate in which we find ourselves.
Since the federal government for criminal justice purposes is organized under a single department
of justice and its supervised United States attorneys, the federal response is less daunting. Federal
criminal courts face comparatively fewer cases, the great majority of which are initiated at the
sole discretion of federal prosecutors. On the other hand, the states are usually made up non-
unified, independent prosecutorial officers acting in judicial districts that follow different
practices and sometime differ even within the same court. State courts typically have much
larger criminal dockets and prosecutors have less discretion and often fewer resources. In
some state courts, both prosecutors and organizational defenders, if they exist at all, are
94
likely to have hundreds of cases each. Their extra-trial activities, including plea bargaining, are
often informal, on the fly, or at the last moment. In many jurisdictions, formal arraignment takes
place very close to the trial date. In that circumstance, there is little time left for formality and
documentation. Therefore, any approach or suggested solution in response to Frye and Lafler
must be practical in order to be meaningful, useful and effective. I believe recognition of these
differences and challenges impacted the Court's willingness to simply provide its own solution.
As a result, stakeholders are provided the opportunity to devise workable solutions, which the
Court in the future will approve, disapprove or modify upon further review.
Almost all cases are bargained now – Aff would result in a massive increase in
trials
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.
Increasing the federal circuit court’s workload would hinder current

courts ability to guarantee IP protection
Kirk 06 – Michael K. Kirk, Executive Director of the American Intellectual Property Law
Association, Chairman, Senate Judiciary Committee; United States Senate
http://www.aipla.org/Advocacy%20Shared%20Documents/TES_2006-03-
24_109C_ImmigrationBill-Specter-Kirk.pdf pg.1-2 KKC
I 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
95
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

Bird, 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” http://www.americanlegislator.org/intellectual-property-the-
innovation-economys-engine-for-growth-and-job-creation/ KKC
Intellectual 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
96
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 collapse causes nuclear war

Tønnesson 15 — (Stein Tønnesson, Leader of programme on East Asian peace @ Uppsala
University, “Deterrence, interdependence and Sino–US peace,” International Area Studies
Review, 18:3, p.297-311, http://journals.sagepub.com/doi/full/10.1177/2233865915596660,
accessed 7-13-2017, SagePub, JSO)
Several 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
97
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
98
Politics/Prosecutorial Resources Links Extensions
Plea bargaining is politically popular and saves criminal law enforcement

resources
Gerard Fowke, JD, Georgertown, 2013, American Criminal Law Review, Material To Whom?:
Implementing Brady's Duty To Disclose At Trial And During Plea Bargaining,
http://heinonline.org/HOL/Page?handle=hein.journals/amcrimlr50&div=23&g_sent=1&casa_to
ken=, p. 590-92
Voters, legislators, and prosecutors have made the plea-bargaining system possible.
Politically incentivized to control crime at a low cost, legislators grant the prosecutor
discretionary power by enacting the criminal code she enforces. n118 Enforcement is cheap when
crimes overlap, have vague elements, and carry hefty penalties, because the same act can result in
disparate punishments. n119 Control over the severity of punishment gives the prosecutor
leverage over the accused, n120 making plea bargaining efficient and reducing the role of the
courts. n121 As a result, prosecutors now adjudicate more criminal guilt than judges: when 94
percent of convictions are guilty pleas, n122 prosecutorial discretion separates the innocent from
the guilty. The adjudication of guilt by the prosecutor raises the same separation-of-powers issues
as adjudication by administrative agencies. n123 But while courts review the actions of the
administrative state, they exercise little oversight over the plea-bargaining process. n124 But
Brady's duty to disclose and Strickland's guarantee of effective assistance of counsel are so
"fundamental to the protection of defendants' constitutional rights" n125 that they do
apply in the plea-bargaining context. The Supreme Court extended Strickland to plea
bargaining, n126 and nearly every appellate court to decide the issue has done the same for
Brady. n127 In United States v. Ruiz, however, the Supreme Court held there is no duty to
disclose impeachment evidence during plea bargaining, n128 which some lower courts
interpreted as removing Brady from plea bargaining altogether. n129 But Ruiz had a narrow,
efficiency-based rationale. The value of evidence impeaching the government's case, the Court
reasoned, depended on the accused's "independent knowledge" of the government's case, since
that information would fall outside of Brady's scope. n130 So, the limited, contingent value of the
right to impeachment evidence was outweighed by the government interest in efficiently
administering justice. n131 Significantly, the Court only mentioned the prevalence of plea
bargaining to emphasize its "resource-saving advantages" for the government. n132 In contrast,
the Court's recent decision in Lafler v. Cooper pointedly acknowledged "the reality that criminal
justice today is for the most part a system of pleas, not a system of trials." n133 Lafler's
companion case, Missouri v. Frye, was even more candid, noting that the sentences "on the
books" are excessive because they chiefly serve "bargaining purposes." n134 That means a
harsher punishment will attach to someone who risks trial, even if he is "less morally culpable"
than the plea-bargainers who are rewarded shorter sentences for their cooperation. n135
Recognizing that plea bargaining is "our de facto system of criminal justice," the Court has
become more willing to regulate that system to ensure its fairness. n136 And while Lafler
and Frye both involved ineffective assistance of counsel, the close relationship between
Strickland and Brady--the doctrines governing "the core functions of the main players in the
99
adversarial system"--suggests both should similarly apply to plea bargaining. n137 Indeed,
Brady may be more essential to plea bargaining's fairness. According to Judge Rakoff,
"most of the unfairness that occurs during the plea-bargaining process" results from
"overconfidence on the part of prosecutors," whose untested evidence seems to them
stronger "than is objectively warranted." n138 Effective defense counsel, armed with
evidence favorable to the accused, could force the prosecutor to assess her case more
realistically, mitigating this unfairness. Moreover, just as applying Strickland to plea
bargaining has not caused any "systemic disruptions," n139 several courts have similarly
applied Brady without forcing the government "to abandon its heavy reliance upon plea
bargaining," as the Ruiz court feared, n140 demonstrating that efficiency and fairness can
coexist. Before accepting a guilty plea, the judge must ensure that the prosecutor has
disclosed all material, favorable, non-impeachment evidence.
Plea bargaining saves significant prosecutorial resources
The Judicial System, p. 631
The last theme presented was the Court's stressing the importance of plea bargaining and the vital
role it plays in the judicial system. n30 For instance, plea bargaining allows for efficient final
dispositions of the great majority of criminal cases and thus saves prosecutorial resources.
100
Court Clog IP Uniqueness
The courts can handle the workload of cases right now.

Prost 15 (Sharon Prost, Chief Judge, U.S. Court of Appeals for the Federal Circuit, 9-23-2015, "Innovator Insights", IPO
Education Foundation, https://www.ipoef.org/?p=1513, 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.
101
Court Clog Impact Extensions

102
Court Clog D-Rule

It’s a D Rule
New York Times 1860(American daily newspaper, founded and continuously published in
New York City since September 18, 1851,"Our Supreme Court Clogged",
www.nytimes.com/1860/06/16/news/our-supreme-court-clogged.html, June 16, 1860)//ADS
Some years ago the Supreme Court of this District of the State adopted a rule requiring all
contested motions to be put upon a calendar to be called a "Motion Calendar," and heard at
Chambers. The reason given by the Judges for this was, that it would enable the modest lawyers
to get their motions heard as soon as the more bold and less sensitive upon the practice of
etiquette; but it did not seem to work, and was soon abandoned -- the formula of the thing took
up too much time. The great increase of Chambers business of this Court induced the Judges at
the commencement of last month to restore the "Motion Calendar." This second attempt, after
the experience of the four weeks of May and two days in June has proved very disastrous. The
most important of its evil effects is found under the proceedings to foreclose mortgages. It is
well known that much, doubt exists as to the power of the Superior or Common Pleas Courts to
grant actions in foreclosure, it having been held that County Courts do not possess this power --
hence most of these proceedings are brought in the Supreme Court. The mortgagor, not feeling
exactly disposed to pay up the interest on his bond, or even the principal, when it becomes
due, has no trouble in being accommodated, so long as the "motion calendar" exists. When
the complaint to foreclose is served upon him all he has to do is to retain a lawyer to
interpose a simple demurrer, in two lines, "that the complaint does not set forth facts
sufficient to constitute a cause of action," and then the attorney for the plaintiff has to move
to strike it out as frivolous; this motion takes its place at the foot of the "motion calendar,"
with at least six hundred motions before it; -- and as the Court frequently exhausted two days
during the last month in hearing a single motion, the time for reaching a motion may
hereafter be safely set down at three months. But the delay does not stop here; when the
motion is finally reached, argued, and the motion to strike out the demurrer granted, the next
proceeding of the defendant is a motion far leave to answer, accompanied by a stay of
proceedings on the part of the plaintiff; this goes upon the calendar, and judging from the rapid
increase of the calendar, full one thousand motions will be before it, but it is finally reached and
the order granted; then comes a sham answer, and then comes another motion to strike it out,
and then, indeed, a year passes before this can be reached and stricken out. Thus we go, and a
lawyer moderately schooled in the sharp practice of the Judges' chambers, can find points to
introduce motions for years upon a case where not a particle of defence exists. Now is not this
state of affairs truly alarming? In about three weeks this Court will adjourn over to October, and
thus, by reason of this "Motion Calendar," millions of dollars will be for an indefinite time kept
from the rightful owners, besides the waste and destruction of the mortgaged property.
HOMER. Swans in Central Park. To the Editor of the New-York Times: In the absence -- so far as I
have yet observed -- of any ascertained data in regard to the much-regretted death of the swans
in the Central Park, I would venture to suggest, from a long experience as a keeper of various
water-fowl, as well of this country as of Europe, what may possibly have caused the death of
these beautiful birds. I have frequently remarked when any of the various species of "Anatidae"
103
have been long debarred a resort to water, great mischief to have resulted on their being at
once restored to unlimited access to that element, Their plumage during confinement gets into
very bad condition, and in their eagerness on readmission to water, they wash and plunge so
much that their feathers become quilt saturated, even to the very down upon the skin. Under
such circumstances I have known death to en[???]ue, and this probably, should the incident
have been as above, may have caused the death of the poor swans. The medical gentlemen who
examined the dead birds will know whether "pneumonia" would likely be induced under such
conditions. My practice was, upon receiving similar birds from a distance, never to permit free
access to water until such a length of time had elapsed as to admit the birds, kept in proper
quarters in the open air, and with plenty of fresh water supplied in small tubs or other vessels,
to rearrange their plumage and restore it to that condition in which the plumage of all water-
birds in a state of nature is, viz: quite impervious to water.
104
2NR Impact extensions

Federal court clog collapses the federal judiciary– decimates Supreme Court
and rule of law
Oakley 96 (John B.; Distinguished Professor of Law Emeritus US Davis School of Law, 1996 The
Myth of Cost-Free Jurisdictional Reallocation)//ADS
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."5 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,17 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 willing and able to serve, and no
sign that the selection process-never the perfect meritocracy-is becoming less effective in
105
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.
Global democracy is predicated off of US judicial legitimacy

Zoccola '06 (Barbara; President of the Memphis Bar Association, "Voters hold the key for
judicial fairness" July 23, The Commercial Appeal)//ADS
It matters because the health of our American democracy depends on impartial judges who
apply the law fairly and without regard to the prevailing political mood or opinion. More than
200 years ago, the Founders of our nation designed a constitutional democracy based on a
system of checks and balances, a form of government that is now the model for the world,
especially for new democracies that have emerged in recent years. A fundamental part of this
system is the existence of an independent judiciary - judges who are able to act without
concern for the day-to-day whims of politics and election-focused politicians, to protect every
citizen's individual liberties and to prevent a tyranny of the majority. Unfortunately, a Harris
interactive poll conducted in July 2005 for the American Bar Association found that only 55
percent of the respondents correctly identified the three branches of government and only 64
percent correctly identified the meaning of "checks and balances”
Consolidation solves WMD conflict

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, http://foreignpolicy.com/2011/01/03/unconventional-wisdom, JANUARY 3,
2011)//ADS
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
106
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.
Independently, US model of judicial federalism is key to prevent civil war and

authoritarian consolidation
Kincaid, 1995 (John, Robert B.; Professor of Government and Public Service at Lafayette
College, Rutgers Law Journal, 26 Rutgers L. J. 913, Lexis)//ADS
Given that it is increasingly necessary to think globally while acting locally, it is pertinent to
suggest that this American experience with the new judicial federalism, however muddled, may
have useful implications for an emerging federalist revolution worldwide. n132 This potential
utility lies primarily in the concept of independent and adequate state constitutional powers
that enable constituent governments to protect rights not available from a national
government, thereby providing multiple and potentially competing forums for citizen access.
The new judicial federalism shows that rights protection cannot be entrusted to a monopoly
guardian, whether it be the national government or each constituent government acting
monopolistically and autonomously within its jurisdiction. If the American historical experience
has been one of overcoming state tyrannies against individual rights, the historical experience of
much of the rest of the world has been one of overcoming central government tyrannies against
individual rights. The new judicial federalism, moreover, is situated at a critical intersection
between individual rights and local autonomy, a matter of increasing importance and conflict in
107
the post-Cold War era. International rights advocates, influenced by the U.S. Supreme Court
model of rights nationalization, have sought to internationalize rights. They have focused almost
exclusively on international and [*945] national rights forums, largely ignoring regional and local
forums. However, the centrifugal forces of class, race, ethnicity, religion, and language suggest
that rights principles must also be lodged securely in regional and local forums where individuals
daily experience the benefits and abuses of government. International forums have advanced
rights ideas and provided beacons for oppressed peoples, but they remain legally weak and
practically inconsequential for most individuals. The prospect of a world court performing rights
functions analogous to the Warren Court for five billion people might make for a good Star Trek
episode, but it is not within reach of our pre-warp civilization. Most national courts are better at
ignoring or abusing rights than protecting rights. Yet, even where democratization produces
demands for judicial protections of rights, unitary democratic systems with a single supreme
court erected atop a pluralistic polity are buffeted by countervailing universalistic conceptions of
rights and justice held by democratic cosmopolitans and particularistic conceptions of rights and
justice held by the diverse communities that make up the polity. Additionally, prevailing
American conceptions of individual rights, particularly their individualistic foundation, contradict
the communal tenets of many cultures and are regarded in some quarters as Western cultural
imperialism, much like American social conservative reactions to Roe v. Wade n133 as liberal
cultural imperialism. The advancement of human rights, therefore, entails not only a struggle
against reactionary, undemocratic governments, but also a debate among cultures and values in
a very pluralistic world. The new judicial federalism can perhaps contribute to this debate by
confronting the difficult question of which rights should be treated as fundamental, universal,
and uniform, and which rights can be subject legitimately to variation among communities of
people holding diverse values. For most Americans, prohibiting racial discrimination in any
jurisdiction is a fundamental, uniform rights requirement. But do police searches of citizens'
curbside garbage fall into the same category? Also, the new judicial federalism suggests a
democratically based process for rights decision-making in which more than one supreme court
or legislative forum is available to advance rights under conditions of human diversity.
Furthermore, the new judicial federalism allows rights not protected by the national
government to be protected at least in [*946] some regional and local jurisdictions. Nationally
unprotected rights may also include emerging rights, such as the right to die. Americans, for
example, have gradually embraced this general concept, but have not yet formed a legal and
ethical consensus around it. n134 Hence, we have state-by-state legislative and judicial efforts
to define this right. This may be an important consideration because efforts to achieve, through
unitary national institutions, uniform rights protections comparable to contemporary
international standards may generate so much conflict in some emerging pluralistic democracies
as to produce violence, political paralysis, and uniform non-rights protection. The violence
generated by Roe v. Wade n135 in the United States, for example, is mild compared to the
violence generated by socially sensitive rights issues in many other nations where social fissures
are cultural chasms. Democratic nation-building is, in part, a consensus-building process
because sovereign citizens have diverse and conflicting conceptions of rights and justice. It is
unrealistic, and perhaps counterproductive, therefore, to expect every emerging pluralistic
democracy to begin this process with levels of national rights protections that were achieved by
108
Americans and some other Western democracies only after two or more centuries of conflicting
and periodically violent consensus-building. Many emerging democracies have adopted
grandiose bills of rights based on Western democratic models, but judicial interpretations and
actual government protections of those rights often remain distant from the daily lives of most
citizens. The new judicial federalism, however, suggests a model that would enable rights
advocates to continue pressing for vigorous national and even international rights protections,
while also embedding in regional constitutions and local charters rights that cannot be
embedded in the national constitution, effectively enforced by the national government, or
enforced only at minimal levels. Such an arrangement would produce peaks and valleys of rights
protection within a nation, but this rugged rights terrain is surely preferable to a flat land of
minimal or ineffectual national rights protection. The peak jurisdictions can function, under
democratic conditions, as rights leaders for a leveling-up process. In an emerging democracy
culturally hostile to women's [*947] rights, for example, such an arrangement could embolden
at least one subnational jurisdiction to institutionalize women's rights, thus establishing a rights
peak visible to the entire society without plunging the nation into civil war or back into
reactionary authoritarianism. As a corollary to this principle, it would seem advisable to press
hard for freedom of travel and interjurisdictional migration as fundamental national rights,
because even a single peak jurisdiction protecting women's rights in an otherwise hostile
environment could become a refuge for women fleeing a country's rights deserts. The
competitive pressures produced by interjurisdictional migration can have powerful leveling-up
effects on rights protection. Individual and family mobility can also loosen the bonds of
communal cultures that suppress individual rights by compelling communal elites to respond to
their constituents' exit behavior. Under conditions of federalism, or perhaps subsidiarity, such
accommodations can be made in regional and local government forums having cultural
legitimacy as opposed to national institutions perceived as being dominated by alien elites. At
the very least, examining state-equivalent constitutional documents where they exist and
developing case materials on rights rulings by regional courts n136 in different political and
cultural contexts could considerably enhance our understanding of how to go about protecting
individual rights in a highly pluralistic and violence-prone world.
Escalates and goes nuclear

Gottlieb 93 (Gidon; Professor of International Law and Diplomacy University of Chicago Law
School, Nation Against State, p. 26-27)//ADS
Self-determination unleashes and unchecked by balancing principles constitutes a menace to

the society of states. There is simply no way in which all hundreds of people who aspire to
sovereign independence can be granted a state of their own without loosening fearful anarchy
and disorder on a planetary scale. The proliferation of territorial entities poses exponentially
greater problems for the control of weapons of mass destruction and multiple situations in
which external intervention could threaten the peace. It increases problems for the
management of all global issues, including terrorism, AIDS, the environment, and population
growth. It creates conditions in which domestic strife in remote territories can drag powerful
neighbors into local hostilities, creating ever widening circles of conflict. Events in the
aftermath of the breakup of the Soviet Union drove this point home. Like Russian dolls, ever
109
smaller ethnic groups dwelling into larger units emerged to secede and to demand
independence. Georgia, for example, has to contend with the claims of South Ossetians and
Abkhazians for independence, just as Russian Federation is confronted with the separatism of
Tartaristan. An international system made up of several hundred independent territorial
states cannot be the basis of global security and prosperity.
110
Economy – Patent Litigation

Efficient, uncongested court systems are key to economic growth – it
allows areas like patent litigation to flourish that are barred off because
of clogged judiciaries
Kesan and Ball 10 (Gwendolyn G. Ball Research Fellow Business, Economics

and Law Group Institute for Genomic Biology and Information Trust Institute University
of Illinois, “Judges, Courts and Economic Development: the Impact of Judicial Human
Capital on the Efficiency and Accuracy of the Court System” 4/30/10
https://papers.sioe.org/paper/716.html)
There is a long-standing consensus that the clear definition and enforcement of property
rights is an important element in economic development.1 This consensus is of more than scholarly
concern; the experience in the reforming socialist economies demonstrates that secure
property rights play an major role in market economies.2 But well-designed laws and regulations cannot
ensure property rights without an institution that will enforce those rights and settle disputes, and in nearly all countries the
final forum for resolving property rights disputes is the court system. Thus, a well-
functioning court system is crucial for economic growth Following this line of reasoning, economists
have considered the operations of court systems an important area of study. However,
economic study of courts has usually focused on the design of incentive mechanisms to
ensure an accountable and impartial judiciary. Much of this literature discusses the inherent tradeoff between
judicial independence and judicial accountability.3 Nonetheless, some authors have noted that even if judicial
incentives are perfectly designed, the organization of the court system and the rules
under which it operates can have a dramatic impact on its effectiveness as an economic
institution. While it is true that judges need to be protected from outside influences which could bias their decision, even unbiased
decisions must accurately interpret the law. Inaccurate or well meaning but seemingly idiosyncratic
decisions will decrease confidence in the legal system and increase uncertainty in
economic activity.4 And accuracy alone is not sufficient for a high quality court system.
Disputes must be resolved and decisions must be rendered in a timely manner if they are to
provide investors with the security and certainty necessary to promote investment. Thus, a
judicial system must not only be impartial, it must be accurate and efficient as well.
International institutions promoting economic development, such as The World Bank, have
recognized this link and launched technical assistance efforts to improve the
administration of court systems around the developing world.5 Economic scholarship also
recognizes the importance of a well-managed court system. In their study of the relationship between
entrepreneurial investment and the “quality” of the legal systems across states in Mexico, Laeven and Woodruff, define “quality”
not only as “the impartiality of judges” but also as “the quality of judges; the adequacy of
judicial resources; the efficiency of enforcement of rulings; the efficiency of judicial administration
more generally; the cost, ease of use and completeness of property registries and the adequacy of local legislation related to contract
enforcement.”6 Rosales-Lopez explores the impact of recent reforms in the Spanish court system on its
ability to resolve disputes, citing the “problems such as congestion, the high cost and delay
of procedures [that weaken] the access and citizens’ equality before the law, as well as the
enforcement of laws and the guarantees of property rights and contracts.”7 Choi, Gulati and
Posner8 compare appointed and judges and find ambiguous results regarding the “independence” of the two judicial systems. However,
111
they also evaluate both the “productivity” (as measured by the number of opinons written) and the “quality” (as measured by the number of
citations received by such opinions) of judges in the two systems. Thus, to
ensure public confidence and promote
investment, courts must not only be impartial in administering justice, but also accurate
and efficient in the resolution of disputes.9 . Finally, in their massive international study of adjudication of simple
civil cases, Djankov, et. al.[3] analyze the importance of court procedures on both accountability and also on accuracy and case duration.
Thus Recent economic
scholarship has acknowledged the importance of case duration in
analyzing the operation of court systems.
112
Economy – Generic
Court clog ensures economic collapse
Post 11
(Ashley Post, managing editor at InsideCousel, “Frivolous lawsuits clogging U.S.
courts, stalling economic growth,” 6-22-
2011, http://www.insidecounsel.com/2011/07/22/frivolous-lawsuits-clogging-
us-courts-stalling-eco?page=5)
Americans’ litigiousness and thirst for massive damages has been a boon to the legal profession. But some researchers and litigation experts warn that
abundance of lawsuits – many of them frivolous – flooding U.S. courts is severely weakening the
the
economy. According to consulting firm Towers Watson, the direct cost of the U.S. tort system in 2009 was approximately $250 billion, which was roughly 2
percent of the gross domestic product. The amount is double the estimated tort expenses in other countries, including the U.K. and Japan. 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 toinvest in litigation – instead of establishing disincentives for invoking judicial process unless
absolutely necessary. Other countries discourage litigation; we nuture 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.” Theresult 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. One proposed solution to frivolous litigation is the
Lawsuit Abuse Reduction Act (LARA), introduced in March in the House as H.R. 966 and Senate as S. 533 by House Judiciary Committee Chairman Lamar Smith,
R-Tex., and Senate Judiciary Committee Ranking Member Chuck Grassley, R-Iowa, respectively. The bill would revise and strengthen portions of Rule 11 of the
Federal Rules of Civil Procedure, which provides for sanctions against parties that file unwarranted or harassing claims. Proponents say LARA would increase
plaintiffs’ accountability for meritless lawsuits and deter future frivolous claims. However, the bill faces some opposition and obstacles to becoming law.
Clog hurts the economy —bad for business, growth, and justice and rights protections
Leahy 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
http://www.leahy.senate.gov/press/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) GG (Recut)
While consensus judicial nominations are stalled without a final vote by the Senate, millions of Americans across the country are being
harmed by delays. The American people and our Federal courts cannot afford these unnecessary and damaging delays. As the ABA
mean justice delayed in cases involving protection of individual
president noted last week: “Backlogs
rights, advancement of business interests, compensation of injured victims and

enforcement of federal laws. Longstanding vacancies on courts with staggering caseloads
impede access to the courts. They create strains that, if not eased, threaten to reduce the
quality of our justice system. They erode confidence in the courts’ ability to uphold
constitutional rights and render fair and timely decisions. Delay at the federal courts
puts people’s lives on hold while they wait for their cases to be resolved. Businesses face
uncertainty and costly holdups, preventing them from investing and creating jobs. In sum, judicial
113
vacancies kill jobs. Justice
delayed, as the famous maxim goes, is justice denied. It’s bad for
business, it’s unfair to individuals, and it slows government enforcement actions, which
ultimately costs taxpayers money.”
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Small Business – Meltdowns
Wrecks small businesses
Post 11, writer at inside counsel, Frivolous lawsuits clogging U.S. courts, stalling
economic growth, http://www.insidecounsel.com/2011/07/22/frivolous-
lawsuits-clogging-us-courts-stalling-eco?page=2
Americans’ litigiousness and thirst for massive damages has been a boon to the legal profession. But some researchers and litigation experts
warn that the abundance of lawsuits—many of them frivolous—flooding U.S. courts is severely weakening the
economy. According to consulting firm Towers Watson, the direct cost of the U.S. tort system in 2009 was approximately $250 billion,
which was roughly 2 percent of the gross domestic product. The amount is double the estimated tort expenses in other countrie s, including
the U.K. and Japan. 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 nuture 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
percentageof 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.
Key to improve grid reliability
McDonald 10 – DIRECTOR OF TECHNICAL STRATEGY AND POLICY DEVELOPMENT AT

GE ENERGY – ‘10John, HEARING OF THE TECHNOLOGY AND INNOVATION
SUBCOMMITTEE OF THE HOUSE SCIENCE AND TECHNOLOGY COMMITTEE;SUBJECT:
"SMART GRID ARCHITECTURE AND STANDARDS: ASSESSING COORDINATION AND
PROGRESS", July, lexis
MR. MCDONALD: One of the things with smart grid that -- as shown by the reference
model that NIST prepared was it's very expansive. It covers -- the domain is from the
generation plant all the way down to the home. We find no matter how big of a
company, even GE, we need small start-ups. We need other companies to partner with us
to be able to provide the technology for smart grid. So we formed a strategic partner
organization. We're constantly talking with startups and new companies to fill the gaps that
we don't provide our self. And in doing that, we bring them into the standards
arena because standards is very important to us, and if a start-up company that we're
going to partner with doesn't embrace standards, we make sure that that happens, and
we work closely with them in that regard. Thank you. REP. WU: Thank you very much,
Mr. McDonald. I just want to add that whether, you know, it's U.S. General Electric
or Intel, IBM, Westinghouse, the example from other industries has been
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that when the start-ups are permitted to play, they frequently contribute to the ecosystem,
the further development of the field, and occasionally there are acquisitions also that add
to larger companies.
Otherwise meltdowns are inevitable
Earth Island Journal 2k, Winter 1999/2000 Vol. 14, No.

4 http://www.earthisland.org/eijournal/win2000/wr_win2000y2k.html
The third type could happen if the electricity fails. Reactorsdepend on off-site electric power to run cooling
systems and control rooms, with emergency diesel generators for automatic backup.
Unfortunately, according to Olsen, even in the US these generators are "not even 90 percent
reliable." In the US, most local emergency officials are planning for three weeks without power. But diesel generators often
overheat and usually are not operated for weeks at a time. Many generators also have digital components
that may be subject to Y2K failure. "It takes only two hours without the cooling system functioning for
reactor fuel to melt," Olsen says. Power failures also could cause "a meltdown of nuclear fuel
storage pools .... These pools must be cooled for at least five years." Loss of off-site electrical power poses the
most prominent risk to nuclear powerplant safety. Reliable back-up power is needed immediately at each nuclear
site. Fuel cells and gas turbines are more reliable than diesel generators. There are well over 1,000 private utilities, non-utility generators,
public utilities, and rural electric cooperatives in the US and Canada operating more than 15,000 generating units. Many will reach the
millennium with Y2K issues unresolved. The US electric power grid is fragile. In 1996, two disruptions in one five-week period caused 190
generating stations (including several nuclear reactors) to shut down. On August 10, 1996, a sagging tree limb in Oregon caused a short that
caused a blackout in California, Arizona and New Mexico. Millions of people were left without power. In some regions, the blackout lasted
several weeks.
Extinction
Wasserman 1, Harvey Wasserman (author of The Last Energy War and co-
author of Killing Our Own: The Disaster of America's Experience with Atomic
Radiation) October, 2001 America's Terrorist Nuclear Threat to
Itself http://www.wagingpeace.org/articles/2001/10/00_wasserman_nuclear-
threat.htm
The intense radioactive heat within today's operating reactors is the hottest anywhere on the
planet. So are the hellish levels of radioactivity. Because Indian Point has operated so long, its accumulated
radioactive burden far exceeds that of Chernobyl, which ran only four years before it exploded. Some believe the WTC jets could have
collapsed or breached either of the Indian Point containment domes. But at very least the massive impact and intense jet fuel fire would
destroy the human ability to control the plants' functions. Vital cooling systems, backup power generators and communications networks
would crumble. Indeed, Indian Point Unit One was shut because activists warned that its lack of an emergency core cooling system made it
an unacceptable risk. The government ultimately agreed. But today terrorist attacks could destroy those same critical cooling and control
systems that are vital to not only the Unit Two and Three reactor cores, but to the spent fuel pools that sit on site. The assault would not
require a large jet. The safety systems are extremely complex and virtually indefensible. One or more could be wiped out with a wide range
of easily deployed small aircraft, ground-based weapons, truck bombs or even chemical/biological assaults aimed at the operating work
force. Dozens of US reactors have repeatedly failed even modest security tests over the years. Even heightened wartime standards cannot
guarantee protection of the vast, supremely sensitive controls required for reactor safety. Without continous monitoring and guaranteed
water flow, the thousands
of tons of radioactive rods in the cores and the thousands more
stored in those fragile pools would rapidly melt into super-hot radioactive balls of lava that
would burn into the ground and the water table and, ultimately, the Hudson. Indeed, a jetcrash like the one on 9/11 or other forms of
terrorist assault at Indian Point could yield three infernal fireballs of molten radioactive lava burning through the earth and into the aquifer
and the river. Striking water they
would blast gigantic billows of horribly radioactive steam into the
atmosphere. Prevailing winds from the north and west might initially drive these clouds of mass death downriver into New York City
116
and east into Westchester and Long Island. But at Three Mile Island and Chernobyl, winds ultimately shifted around the compass to
irradiate all surrounding areas with the devastating poisons released by the on-going fiery torrent. At Indian Point, thousands of square
miles would have been saturated with the most lethal clouds ever created or imagined, depositing
relentless genetic
poisons that would kill forever. In nearby communities like Buchanan, Nyack, Monsey and scores more, infants and small
children would quickly die en masse. Virtually all pregnant women would spontaneously abort, or ultimately give birth to horribly deformed
offspring. Ghastly sores, rashes, ulcerations and burns would afflict the skin of millions. Emphysema, heart attacks, stroke, multiple organ
failure, hair loss, nausea, inability to eat or drink or swallow, diarrhea and incontinance, sterility and impotence, asthma, blindness, and
more would kill thousands on the spot, and doom hundreds of thousands if not millions. A terrible metallic taste would afflict virtually
everyone downwind in New York, New Jersey and New England, a ghoulish curse similar to that endured by the fliers who dropped the
atomic bombs on Hiroshima and Nagaskai, by those living downwind from nuclear bomb tests in the south seas and Nevada, and by victims
caught in the downdrafts from Three Mile Island and Chernobyl. Then comes the abominable wave of cancers, leukemias, lymphomas,
tumors and hellish diseases for which new names will have to be invented, and new dimensions of agony will beg description.
Indeed, those
who survived the initial wave of radiation would envy those who did
not. Evacuation would be impossible, but thousands would die trying. Bridges and highways would become killing fields for
those attempting to escape to destinations that would soon enough become equally deadly as the winds shifted. Attempts to quench the fires
would be futile. At Chernobyl, pilots flying helicopters that dropped boron on the fiery core died in droves. At Indian Point, such missions
would be a sure ticket to death. Their utility would be doubtful as
the molten cores rage uncontrolled for days,
weeks and years, spewing ever more devastation into the eco-sphere. More than 800,000 Soviet
draftees were forced through Chernobyl's seething remains in a futile attempt to clean it up. They are dying in droves. Who would now
volunteer for such an American task force? The radioactive cloud from Chernobyl blanketed the vast Ukraine and Belarus landscape, then
carried over Europe and into the jetstream, surging through the west coast of the United States within ten days, carrying across our
northern tier, circling the globe, then coming back again. The radioactive clouds from Indian Point would enshroud New York, New Jersey,
New England, and carry deep into the Atlantic and up into Canada and across to Europe and around the globe again and again. The
immediate damage would render thousands of the world's most populous and expensive square miles permanently uninhabitable. All five
boroughs of New York City would be an apocalyptic wasteland. The World Trade Center would be rendered as unusable and even more
lethal by a jet crash at Indian Point than it was by the direct hits of 9/11. All real estate and economic value would be poisonously
radioactive throughout the entire region. Irreplaceable trillions in human capital would be forever lost. As at Three Mile Island, where
thousands of farm and wild animals died in heaps, and as at Chernobyl, where soil, water and plant life have been hopelessly
eco-systems on which human and all other life depends would be
irradiated, natural
permanently and irrevocably destroyed, Spiritually, psychologically, financially, ecologically, our nation would never
recover. This is what we missed by a mere forty miles near New York City on September 11. Now that we are at war, this is what could be
happening as you read this. There are 103 of these potential Bombs of the Apocalypse now operating in
the United States.
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Innovation – Patent Litigation
Efficient court systems allow for a management to IP – that spurs

investment and r and d which bolsters innovation
Kesan and Ball 10 (Gwendolyn G. Ball Research Fellow Business, Economics

and Law Group Institute for Genomic Biology and Information Trust Institute University
of Illinois, “Judges, Courts and Economic Development: the Impact of Judicial Human
Capital on the Efficiency and Accuracy of the Court System” 4/30/10
https://papers.sioe.org/paper/716.html) GG
While most economic scholarship analyzing the importance of the courts has focused on
disputes over real property, the relationship between the court system and investment is no
less strong for intellectual property. And to a large extent, the relationship between the courts
and the patent system depends on the quality of “judicial human capital.” In the United States, as
in many countries, the courts are a crucial part of the patent system to the extent that the patent
system is can be termed a two-stage process. In the first stage, the U.S. Patent and Trademark Office grants
property rights to inventors. In the second stage, inventors can protect those rights through patent infringement suits in the courts and
alleged infringers have the right to challenge improvidently granted patents and have them declared invalid. As a consequence, some
authors have referred to patent rights as being “probabilistic,” depending not only on
whether the innovation embodied in the patent has commercial value, but also on the
refinement of that patent property right after litigation.15 Just as with real property, the
management of the court system has an impact on both patenting behavior and on
investment in research and development. While the majority of all patents are not litigated, those that are disputed in
the courts are among the most valuable.16 The rules governing the court system may even “feed back”
into patenting behavior; some authors have found evidence that the increasingly “patent
friendly” rules17 adopted by the courts are a major factor in the surge in patenting since
the 1980s.18 Moreover, the ability to define the “probabilistic” property rights is an important
element in determining whether patents fulfill their purpose of promoting innovation.19
Finally, the costs associated with the patent systems can be reduced by an efficient court system; firms may hesitate to invest in new
products and technologies which may infringe on existing patents, so any additional delay or cost in clarifying existent rights may slow the
process of innovation. The
more quickly and cheaply these rights are defined, the more beneficial the
patent system will be in promoting and not inhibiting innovation and investment.
Court clog undermines effective and predictable IPR decisions – Crushes

tech innovation
Kirk, Executive Director of the American Intellectual Property Law Association, 3-24-
6 (Michael, http://www.aipla.
org/Content/ContentGroups/Legislative_Action/109th_Congress/Testimony5/ImmigrationBillS
enatorSpecter.pdf)
I 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
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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 presentefforts 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 envisionsadding 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
Business can effectively deal with decisions, positive or negative, but it cannot deal with
the overall burden on the court.
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. Sincerely,
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2NC IPR Impact -- Link Module
That collapses of IPR enforcement around the globe on everything from

agriculture to computers
Resnik, East Carolina University, 2 (David, “Bioterrorism and Patent Rights: Compulsory
Licensure and the Case of Cipro,” The American Journal of Bioethics, Summer, Volume 2,
Number 3)
Although we believe that governments should provide strong support for intellectual property rights, we also recognize that these rights are
not absolute and can be violated to promote social values or state interests under certain conditions. Because patent protection is best
defended on utilitarian grounds, intellectual property laws and policies must arrive at the proper balance of public use and benefit versus
private ownership and control. We do not believe that there is a simple, one size-fits-all formula for striking this balance. Each decision
Despite good intentions, the state does not have the moral
must be made on its own merits.
authority simply to act willy-nilly to abrogate individual intellectual property rights
by arbitrarily restricting or overriding patents or copyrights for whatever purpose it sees fit. In fact, we contend
the moral burden of proof rests with the government to provide an explicit, clearly articulated rationale and convincing evidence before
Without this strong presumption against violating
restricting or overriding intellectual property rights.
intellectual property rights, it is possible that government action would succumb to various
ad hoc social, political and economic pressures to violate those rights whenever
the “need” arises. This eventuality might be especially likely in a political and social environment that is hostile to or suspicious
of the motives of the corporate owners of the target patent. There have been many instances in the last 225 years of American history where
it would have been useful in the short-term to restrict or override patents or copyrights. For example, the United States (and the world)
could have saved untold millions of dollars by restricting the patent on zidovudine (AZT) to a mere 15 years instead of 20 or by overriding
the patent. It is true that many lives and dollars could be saved (in the short run) by taking various steps to restrict or override
pharmaceutical patents. One might even argue that justice requires countries to take these actions against drug companies in order to
The same arguments might
provide patients with access to medications. But why stop with the pharmaceutical industry?
apply to any number of other “vital” products, such as computer software,
computer hardware, research databases, and automobiles as well. In this way, arguments
for restricting or overriding patents could be extended far beyond their original
intent. The slippery slope implications of an attack on patent protections take on
even greater significance when one considers that the United States is the world’s
leading holder of intellectual property and exporter of goods and services related
to intellectual property. For example, some observers have noted that if Tommy Thompson had invoked federal law to
allow compulsory licensure of Cipro, it would have undercut U.S. arguments against similar
measures proposed in various countries as a means of addressing the AIDS epidemic in the developing world
(Anonymous 2001). The UnitedStates has a great deal to lose if it does not play a leading role
in engendering respect for patent protections . The United States has traditionally argued that
pharmaceutical companies need the assurance that their patents will be honored internationally in order to encourage them to risk millions
of dollars in research and development. The George W. Bush administration played a central role in arguing that Brazil and other countries
If the United States had failed to honor the Cipro patent from a German
should honor international patent law.
then other countries could view this as a signal that America lacks
company,
commitment to intellectual property rights and they, too, will also see no good
reason to reciprocate by honoring patents from U.S. companies .
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2NC IPR Impact -- Economy Impact
And, Our argument flips their economy impacts

Cleland, Director of the Center for Technology Freedom at the Institute for Policy
Innovation, 3 (Bartlett, “The Importance of Intellectual Property Rights,” Intellectual Ammunition, April
1, http://www.heartland.org/Article.cfm?artId=11732)
Intellectual property represents a huge slice of the U.S. economic pie. Demand
for these products in the international marketplace is growing more rapidly than demand in the U.S. itself. In the
short term, proposals to restrict the intellectual property rights of pharmaceutical manufacturers and
similar firmswill have a devastating effect on the economy, at a time we can ill afford
it. In the long run, wholesale erosion of property rights will mean irreparable
damage to the most innovative and creative industries that drive our economy . In a
world where one cannot profit from ideas or inventions, little incentive exists to continue. The United States has a long history of
By failing to protect intellectual property rights, we
opposition to government takeover of industry.
turn our back on that history, allowing a power grab of not just a company, or even a single market sector, but of the very
foundation of economic growth and innovation. Doing so will leave this country--
and the world--substantially poorer, not just in the pocketbook, but intellectually as well.
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2NC IPR Impact -- Competitiveness Impact
And, Our arguments flips their competitiveness impact

Mehlman, Assistant Secretary for Technology Policy at the Department of Commerce, 7-31-
2 (Bruce, “The Changing Wealth of Nations: Intellectual Property and American Competitiveness
in the Age of Innovation,” Remarks delivered to the Licensing Executives Society Silicon Valley
Chapter, http://www.technology.gov/speeches/p_BPM_020731_NatlWealth.htm)
Our culture rewards risk, encourages entrepreneurship, celebrates success and upholds the rule of law more than any other. And of most
significance to us today, Americans have enjoyed the most rational, predictable and
transparent framework for intellectual property rights in the world, encouraging
investment andincenting innovation. BUT notwithstanding our advantages and current leadership, the rest
of the world is not blind to the importance of innovative capacity in the 21st century, and
they're not standing still. America's global competitiveness faces pressure on multiple
fronts as technology-driven changes come faster, disruptions cut deeper, technologies fuse and wealth becomes ever more mobile. Here
are four of the biggest challenges we face: Building the Best and Brightest, instead of just importing. Within a generation we will need a far
more science-literate, technology-savvy society than we have today. Yet American students at the K-12 level continue to lag behind their
international counterparts in math and science learning. U.S. eighth graders ranked 19th out of 38 nations in math and 18th in science in
the 1999 Third International Math & Science Study Repeat. The World Competitiveness Yearbook ranks the U.S. 24th out of 45 nations in
science education and 18th in "attractiveness of S&T to youth." Other nations are aggressively acting to stem their own brain drains and
recruit their citizens trained in the U.S. back to their native countries, and many such as Taiwan are succeeding. What happens if we
neither produce nor attract and retain the best and brightest scientists and technology students? Funding the Future. Americans enjoy and
expect a very generous entitlement system. Retirees are living longer and receiving far more in Social Security, Medicare and Medicaid
benefits than they ever paid into the system. According to Dan Crippen of the Congressional budget office, in 2001, these entitlement
programs accounted for 26% of non-interest federal spending; but in 2030, they could account for up to 70%. Things we can afford for our
parents may well become too expensive for our children to pay for us. How will future cash crunches impact federal support fo r education,
infrastructure and research and development? Sharing the Wealth. Three billion people on our planet live on less than $2 per day, and half
the world has never made a telephone call. Globalization and increased connectivity ensure that the most impoverished see how the other
half lives, and extraordinary disparities may breed discontent and hostility. As we have seen with AIDS drugs in Africa, there will be great
pressures on intellectual property owners to share the wealth or lose control over their innovations. New technologies and discoveries will
only add to the pressures on IP and global security. How will we address these pressures while maintaining the incentives critically needed
to ensure future innovations get funded? Having Wisdom Keep Pace With Intelligence. We have not yet developed systems to assess the
social implications and ethical consequences of new technologies. I'll give you an example. Most people would probably support a genetic
screen that could ensure our offspring will be free of genetic defects before they are conceived. But what if parents also wish to pre-select
gender? Eye-color? Height? Intelligence? The Washington Post recently reported on a stud bull named Elevation who lived 60 miles west of
Washington (June 30, 2002). Elevation's genes were so good they used him to sire 80,000 daughters and at least 2.3 million
granddaughters. Named Bull of the Century, it is estimated that about 15% of the DNA in today's US dairy cows came from this one animal.
If we can find the gene that made Albert Einstein so smart, should we let people similarly splice it into our own future
generations? Perhaps most significantly, we face the healthy but daunting challenge of global competition that keeps getting better. Those
who believe in the notion of permanent superpowers would be wise to remember that the sun never set on the British Empire, and all roads
The battle for leadership in the Innovation Age is a many-horse race, and
used to lead to Rome.
other nations and regions are also working to improve their own innovation
systems. While the United States accounts for 44% of worldwide R&D today, in 1970 we accounted for 70% (Alliance for Science &
Technology Research in America). The EU is racing to match our investments in nanotech, while Asian nations have collectively pulled
ahead. The world is not standing still THE BUSH HIGH TECH AGENDA With intellectual output playing such a critical role in our
economy, society and global competitiveness, the Bush Administration is pursuing a high tech agenda that seeks to maximize the creation,
protection and commercialization of intellectual property. Specifically, our policies promote innovation, support entrepreneurship, improve
infrastructure and empower people. To promote innovation, the President has proposed aggressive investments in research &
development. Our 2002 budget crossed the $100 billion mark for the first time (at $103B), and we have proposed $112 billion for 2003 - the
largest R&D commitment in our nation's history. We're also asking Congress to make the R&E tax credit permanent, to reflect the
importance of private investments in research, which are twice as large as government's. We're seeking to strengthen intellectual property
protection - both by devoting far more resources to the U.S. Patent & Trademark Office (21% more in 2003), cracking down on illegal piracy
here at home, and by enforcing IPR aggressively around the world. Additionally, the President has asked Congress to devote another $200
million to improving math and science teaching at the K-12 level, working with regional teacher colleges and the NSF to improve math &
science curricula. To support entrepreneurs, the Bush Administration passed a bipartisan tax cut that many experts credit with moderating
the recession of 2001, and we championed an economic stimulus package that accelerated depreciation schedules for businesses that invest
in capital equipment for the next 3 years - the #1 request from the tech sector. We continue to push an aggressive free trade agenda around
the world, finally prevailing upon Congress - including many alleged high tech Members who fought against us every step of the way - to
extend Trade Promotion Authority to this Administration, so we can negotiate with one voice instead of 101. We're working through the
WTO to overcome the anti-globalization inertia we inherited from Seattle, to reduce barriers to trade (especially in services) and to increase
international cooperation in protecting intellectual property. Additionally, we're asking Congress to reform the Export Administration Act
to make it less burdensome for our technology companies to export new tech equipment consistent with national security concerns. And the
President is moving aggressively to improve the transparency and reliability of corporate accounting and governance following the excesses
of the 1990s. We're aiming to put those who broke the law in jail, plug the accounting loopholes that reduced market transparency, and
reassure investors, while still allowing markets forces to prevail and ensuring our system continues to allow and reward risk. To improve
our innovation infrastructure, the President's technology priorities include hardening the nation's defenses, especially critical infrastructure
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protection and cyber security; implementing a national energy plan that uses technology to improve energy efficiency while expanding
domestic capacities; aggressively promoting the deployment and usage of high-speed Internet (broadband) networks, both on the supply
and demand sides; and working to ensure we manage the radio spectrum most effectively - for example, just last week we identified 90MHz
of government spectrum for transfer to the private sector for 3G services. Lastly, to empower people, the President made e-government a
top tier priority for the Administration, leveraging unprecedented federal investments in IT - $52 billion proposed for 2003, a 15% increase
- to provide more servicesto citizens and operate government more efficiently. Of greatest importance to this President may be the
bipartisan efforts to improve our nation's education system, epitomized by the No Child Left Behind Act signed last year. To remain globally
competitive - both as a tech-led economy and as the most-inclusive opportunity society - we must place education first, and that's what our
President is doing. IP ISSUES AT THE OFFICE OF TECHNOLOGY POLICY In pursuit of this agenda, my office likewise focuses on
policies to promote innovation, support entrepreneurs, improve infrastructure and empower people. We're working on several intellectual
property questions of interest to many of you including: TECH TRANSFER. By statute, our office has the federal government lead on
examining, reporting on and recommending improvements to the 1980 Bayh-Dole and Stevenson-Wydler Acts among others. We
coordinate federal technology transfer policy through an interagency working group. These policies and laws establish the intellectual
property regime governing technologies developed with federal funding, such as much university IP and inventions at our government labs.
These laws have helped distinguish America from other nations with large federal investments in R&D by setting a rational, predictable and
consistent framework for determining IP control and ownership that encouraged commercialization. With some urging assertion of greater
federal rights over such IP (e.g. seeking recoupment) and others recommending less federal control (e.g. surrendering march-in rights),
we're trying to ensure balanced rules ensure ideas move from concept to commerce. DRM. We're working with NIST and the PTO to
examine questions of digital content and rights management as part of our effort to better encourage the deployment and usage of high-
speed Internet. Through two expert roundtables we have found that concerns over intellectual property protection (and business models)
are keeping valuable content off-line, especially games, music and video. We continue to work with information technology innovators,
content creators and consumer advocates, hoping to identify and remove barriers to market-based solutions so these potentially "killer"
consumer broadband applications can get off of the sidelines and into our homes. The Office of Technology Policy also interacts with policy
makers across the country and around the world, trying to identify and promote policies that support innovation and tech-led economic
development. We continue to stress to our international counterparts that their protection of intellectual property rights is a core driver of
sustainable growth and a prerequisite for attracting foreign investment. Exporting American IPR policies and practices offers a win-win -
supporting our businesses and protecting our technology while helping people around the world improve their own economies and
innovative capacity. If innovation and entrepreneurship profoundly shaped the 20th century, they will define the 21st. Knowledge
Our ability to
development and commercialization are the new drivers of economic growth, both in the U.S. and around the world.
create new innovations and harness their power will directly impact our national prosperity,
security and global influence. I'd like to conclude by offering three principles to guide our efforts going forward. First,
we must not forget that innovation is the key to future prosperity. Technology can enable us to improve our lives and make the world a
safer, more abundant, and more equitable place. Yet many will fear technology and the disruptive changes it brings, while others will try to
harness its extraordinary power for extraordinary evil. As leaders in government and industry, we must work to promote greater public
understanding of, appreciation for, and widespread access to technology. We need to help our citizens understand these changes and
educate them to take advantage of them, relying on sound science and rational analysis to use technology to advance the human
intellectual property creation and protection are the keys to
condition. Second,
unleashing our innovative potential. We must encourage entrepreneurship,
reward risk, and maintain the incentives that are so critical to the creative
process of bringing ideas from concept to commerce.
123
2NC IPR Impact -- Biotech
Effective IPR enforcement is key to agricultural biotek

Oestreich, Vice President for DuPont, 3-28-8 (Dean, “Nurture agriculture success:
Protect patent
rights”,http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=/20080328/OPINION01
/803280357/-1/politics)
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 aserious 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'sfarmers 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.
124
2NC IL – Democracy/Econ
A clogged docket weakens the economy and democracy.
The Economist 11, 10-1-11 ("The Feeblest Branch", Economist,
http://www.economist.com/node/21530985, accessed on 7-11-2017, AB) **edited for ableist
language**
IN THEORY America's three branches of government are equal. In practice the judiciary is the weakest, as Alexander Hamilton cautioned in “The
Federalist Papers”, because it controls neither sword nor purse. Of late, state legislatures and executives have been closing their purses as they struggle
to balance tight budgets. At the same time, the
federal bench is being weakened by both stagnant salaries and
frozen politics. This is now swelling dockets, delaying cases, and reducing access to the legal
system. Ask, for example, Katherine Feinstein, the presiding judge of the San Francisco Superior Court (and daughter of Dianne, California's senior
senator). She says that her court narrowly missed “falling off a cliff” last month by getting an emergency loan. But she expects worse later in this fiscal
year because California's current budget, which has already cut court funding by $350m, contains a trigger [prompt] for even more reductions.
Between 15 to 28 of California's 58 county courts could go over that cliff in the coming year, she thinks. How does a court go over the cliff? In
unphotogenic slow motion, which makes the dire consequences harder to see .
Since the budget cuts started in 2009, says Ms
Feinstein, the court has been muddling through. Service has got slower, waiting times longer. An
uncontested divorce now takes about half a year, she says. Without the loan, she would have had to lay off so many people that such a divorce would
have taken three times as long. With the loan, it will take merely twice as long. That
means lives (not just those of the spouses, but also those
of children in custodial limbo) are
put on hold. A typical lawsuit now goes to trial within a couple of years,
says Ms Feinstein, but that could soon stretch to five years. The backlog of traffic infractions is already
so daunting that it compromises enforcement (and the deterrence of bad driving). And so on. The Californian constitution
guarantees criminal defendants a right to speedy trial, but it does not technically require courts to administer civil law at all, Ms Feinstein says. So, in
theory,
civil adjudication could stop altogether, as it already has on one judicial circuit in Georgia.
That, she says would bring about the “unravelling of society”. Courts are in similar straits all over the country. A
report by the American Bar Association found that in the last three years, most states have cut court funding by around 10-15%. In the past two years,
26 have stopped filling judicial vacancies, 34 have stopped replacing clerks, 31 have frozen or cut the salaries of judges or staff, 16 have furloughed
clerical staff, and nine have furloughed judges. Courts in 14 states have reduced their opening hours, and are closed on some work days. Even the
buildings are not immune; around the country 3,200 courthouses are “physically eroded” and “functionally deficient”, says the National Centre for
State Courts. This affects courts' functioning in many ways. One municipal court in Ohio stopped accepting new cases because it could not afford to buy
paper. New York judges' pay has been frozen for a dozen years, even as their caseload has increased by 30%. The state's 1,300 judges have sued the
legislative and executive branches. Trial court judges make $136,700, less than the $160,000 (before bonuses) a stammering associate in a top-shelf
New York City law firm expects in his first year on the job. Some clerks who have received automatic annual pay rises make more than the judges they
serve. The rate of attrition among New York judges has spiked. This means that the courts are limiting access just when
Americans need more adjudication. The recession left a vast legacy of foreclosures, personal and
business bankruptcies, debt-collection and credit-card disputes. In Florida in 2009, according to the
Washington Economics Group, the backlog in civil courts is costing the state some $9.8 billion in
GDP a year, a staggering achievement for a court system that costs just $1.2 billion in its entirety. To make up the funding shortfall, courts
are imposing higher filing fees on litigants. This threatens the idea of the equal right to justice,
says Rebecca Love Kourlis of the Institute for the Advancement of the American Legal System. Even criminal cases are not immune.
Some crimes, like domestic violence, have increased with the rotten economy. In Georgia, where court funds have fallen by
25% in the last two years, criminal cases now routinely take more than a year to come to trial. This means that jails are full of the
innocent alongside the guilty. Their incarceration adds costs far greater than the alleged savings
in the court system. Above all, it causes gross injustice. At the federal level, things are better—but only a bit.
Politics, more than funding, has kept judgeships empty. Filibustering of judicial nominations increased
under George Bush, and even more sharply under Barack Obama, causing federal cases to pile up. But here too, pay is an issue. Even
as the caseload has grown, federal judges' salaries have risen by only 39% since 1991 while the cost of living has gone up 50%. Many good judges have
simply returned to private practice. To many judges, as the American Bar Association puts it, “the underfunding of our judicial system threatens the
fundamental nature of our tripartite system of government.” In San Francisco, Ms Feinstein thinks that the judicial branch must start explaining itself
more forcefully to legislators. And if that doesn't work, she thinks it may be time to ask voters directly for money. As one revered judge, Learned Hand,
125
said in 1951, “If

we are to keep our democracy, there must be one commandment: thou shalt not
ration justice.”
Flooded litigation hurts the economy and costs businesses millions.

Michel 99, American federal judge on the United States Court of Appeals for the Federal
Circuit from 1988 until 2010 and served as its chief judge from 2004 until his retirement, 1999
(Paul R. Michel, “The Court of Appeals for the Federal Circuit Must Evolve to Meet the
Challenges Ahead,” American University Law Review 48, no.6 (August, 1999): 1177-1203,
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1339&context=aulr,
accessed on 7/12, AB) **edited for glang**
Consider the position of a business executive in such a circumstance. His [Their] own highly paid lawyers cannot tell him [them] with
realistic probabilities, much less any kind of certainty, whether the particular product infringes the patent in question. Therefore,
the business leader is unable to make secure judgments about what steps he [they] should take
and faces compounded dangers. He [They] faces not only the unpredictability of the litigation
process from the standpoint of its ultimate outcome, but also from the standpoint of how long it
will take, how much it will cost, and how much disruption company employees will suffer in the
process of discovery, trial preparation, and trial. Whether a given case from start to finish will
take two, four, six, or eight years is very difficult to assess. Similarly, whether it will cost half a
million, a million, two million, or four million dollars may be equally hard to predict and depends
on many variables. Such variables include the judge in question, the number of cases on that judge’s
docket, the nature and complexity of the case, the number of patents being asserted, the tactics
of the opposition, the relative strength of the companies, and many additional factors. The essential
reality for the business leader, however, is that he [they] is facing a process that can be enormously expensive,
disruptive, entirely uncontrollable, and unpredictable. Therefore, it is likely that as business leaders become
more aware of such risks and uncertainties, they will insist on arbitration clauses, or other such contractual provisions, in an attempt
to avoid the risk of becoming victims of the uncertainties of the U.S. litigation process.49
126
2NC IL – Trade
Federal circuit decisions impact global trade and economic growth.
Pike 13, Adjunct professor at Emory University School of Law, where he teaches Customs Law,
10-13 (Damon V. Pike, “THE FEDERAL CIRCUIT STUMBLES: U.S. CUSTOMS GETS "GREEN LIGHT"
FOR INDEFINITE INDECISION ON IMPORTER PROTESTS,” Emory International Law Review;2013,
Vol. 27 Issue 2, p719, http://law.emory.edu/eilr/content/volume-27/issue-2/recent-
developments/federal-circuit-stumbles.html#section-0b79795d3efc95b9976c7c5b933afce2,
accessed on 7/13, AB)
In 2012, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued two precedent-setting
decisions that essentially removed the obligation of U.S. Customs and Border Protection (CBP or Customs)
to make timely decisions on Protests filed by importers challenging the assessment of duty on
imported merchandise. Unlike most other federal agencies that are required to make certain decisions
within a “reasonable” time period under the Administrative Procedures Act (APA), 1 CBP’s statutory two-year time
limit to render a decision is now considered a “directory” obligation—not a mandatory one. As a result, CBP can effectively
choose to delay indefinitely any decision with respect to Protests. This “indefinite indecision” extending
beyond the two-year statutory period can hardly be considered “reasonable.” 2 This outcome stems from the Hitachi 3 and Norman
G. Jensen 4 cases, in which the
Federal Circuit affirmed decisions of the U.S. Court of International Trade (CIT) that ignored
the plain language of the Protest statute and misread the corresponding legislative history,
including important changes enacted in 1970 to ensure a quicker and less costly option in securing administrative review and
decision rather than invoking automatic review by the judiciary. Due to the Federal Circuit rulings ,
CBP now has an
indefinite, unspecified period of time to issue a final decision on a Protest. These rulings
ultimately deprive importers of their right to timely administrative review of CBP decisions and
instead force importers to follow a useless “expedited appeal” procedure that allows the agency
to abdicate its decision-making responsibility and forces the judiciary to make the initial decision
instead. In turn, businesses cannot gain the certainty they need to make informed decisions,
investments, etc.—which detrimentally impacts global trade and hinders economic growth. This
unfortunate state of affairs for importers needs to be addressed, and Congress should act to remedy this unfair approach to “non-
decision-making” by the agency that collects more revenue for the federal government than any other, except the IRS. 5 This Article
will begin by reviewing the two cases: Hitachi and Norman G. Jensen. It will then proceed to evaluate 19 U.S.C. § 1515, which
prescribes the time limit for Customs to issue a decision on a Protest. Then, the Article will examine how these rulings fit within the
judiciary’s methods of interpreting time limits and the other options to compel CBP to issue a decision. Finally, the remedies for
importers post-Hitachi will be evaluated, but the Article will conclude that the only real option is legislative intervention and a re-
write of the applicable statute.
127
2NC IL – Innovation
IP is crucial for innovation and key to keep competiveness
McDaniel 2k – Karen McDaniel, co-chair of the Intellectual Property section @ Briggs and
Morgan. The Big Business of Patents: The Role of The Federal Circuit Court of Appeals in
Establishing Value of Intellectual Property http://www.alteralaw.com/docs/big-business-of-
patents.pdf KKC
There is also a growing concern in the U.S. that failure of corporate management to properly
safeguard IP could be grounds for shareholder derivative actions on the theory of waste of
corporate assets. In Caremark, xv shareholders filed a derivative suit against directors for failure of duty of care in adequately supervising
employees, which failure created liability for the corporation relating to health care payments. In
Caremark, the Court in passing on the proposed settlement, noted: In light of these developments, it
would, in my opinion, be a mistake to conclude that …corporate boards may satisfy their obligation to be reasonably informed
concerning the corporation, without assuring themselves that information and reporting systems exist in the organization that are
reasonably designed to provide to senior management and to the board itself, timely, accurate information sufficient to allow
management and the board, each within its scope, to reach informed judgments concerning both the corporation’s compliance with
law and its business performance.x As of this point, the author is unaware that these principles have been applied to find liability for
corporate officers or directors for failure to care for intellectual property assets. However, it is not a far stretch to imagine the
application of these principles to an intellectual property context. In fact, some commentators have noted: …as
intellectual
property becomes more critical from a strategic, financial and competitive point of view,
directors may face similar potential liability based on claims of a breach of fiduciary duty in
situations where a company faces a material loss in value due to insufficient attention given to
the management of intellectual property assets. xvii So what is an organization that wishes to best manage its
intellectual assets to do? The first thing to do is to realize that the traditional notions of success using intellectual property are no longer valid. It
used to be that, if one could create a good new product, and figure out how to market and sell it, such could spell success. Nowadays, however,
if one cannot protect what one has created, all is for naught. Any competitive advantage likely
will be quickly lost, as competitors rush in to fill in the void. In our information-age economy,
the pace of innovation has quickened, and information is easily procured. It is also probably less safe for
corporate managers to totally delegate decisions about intellectual property to middle managers and in-house legal staff. At a minimum, upper
management should keep these matters “on their radar screen.” After
all, if intellectual property constitutes the largest
asset in most organizations, delegating total responsibility for management of that resource to a
middle manager may not be subsequently viewed by a judge or jury to be the most prudent
business decision. Third, corporate managers should assemble a savvy and experienced team of professionals to assist in the
process of Intellectual Asset Management. Many groups other than lawyers offer IP valuation and consulting services. In fact, there
appears to be a rush to capitalize on serving what is perceived to be an unmet market need. Most of the Big 5 accounting firms are
in the business. So too are a number of economists and other financial experts. Some of the techniques employed by these groups
include: • Providing financial-based IP audits (consisting of functions such as review to determine if royalty rates are being paid
correctly, and whether maintenance fees are being paid); • Application of financial measures and econometric techniques to
determine various statistics (such as leverage of IP by calculating R&D expenditures as a percentage of sales); • Providing patent
mining software designed to determine which competitors are in a particular field of technology and where their patent stakes lie,
as well as determining prior art citations and patent density in particular technical fields xviii; and • Providing services that assess the
company’s current state of intellectual asset management and providing reports for improving systems and performance.
Undoubtedly, these techniques might be useful tools, and also might provide a good starting point to an organization wishing to
more closely manage its intellectual property. But regardless of the service employed, there is no silver bullet, no quick fix. An
intellectual property portfolio is an organic thing; it is constantly shifting and changing. Experts, including IP counsel, must take an
active and continuous role in shaping the portfolio. As in other matters, effort in will probably correlate with results out. bullet, no
quick fix. An intellectual property portfolio is an organic thing; it is constantly shifting and changing. Experts, including IP counsel,
must take an active and continuous role in shaping the portfolio. As in other matters, effort in will probably correlate with results
out.
128
2NC IL – SCOTUS
Supreme court clog spills over to the Federal Circuit’s patent and
trademark appeals
Holbrook, 13 – Timomthy R. Holbrook, Emory University School of Law; 2013. Manurer
School of Law: Indiana University, Digital Repository @ Maurer Law, IP Theory, “Explaining the
Supreme Court’s Intrest in Patent Law”, Vol.3 Issue.
http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1020&context=ipt pg.4-
KKC
I. Introduction The United States Court of Appeals for the Federal Circuit is unique within the
federal judiciary: it is the only United States circuit court of appeals whose jurisdiction is defined by subject matter and not geography. It is
truly a national appellate court whose decisions impact the entire country. Although its jurisdiction is rather hodge-podge, including appeals from the
United States Court of Federal Claims, various Boards of Contract Appeals, the Court of International Trade, the Court of Veterans Appeals, United
States district courts in cases claiming non-tort monetary claims against the federal government, and the International Trade Commission,1 the
primary impetus for the Federal Circuit’s creation was to bring national uniformity to the United
States patent laws.2 Congress created the court in 1982 by merging two pre-existing courts, the U.S. Court of Customs and Patent Appeals
and the appellate division of the U.S. Court of Claims.3 By creating a single appellate court for patent law, Congress hoped to increase the value of
patents and reduce forum shopping.4 The
Federal Circuit’s creation also had another consequence: reducing
the need for the Supreme Court to intervene to eliminate splits in the various circuits
regarding patent law. With each decision, the Federal Circuit creates law at the national level, a
role previously reserved for the Supreme Court. It was unsurprising, then, that the Supreme
Court’s involvement in patent law during the first approximately twenty years of the Federal
Circuit’s existence was fairly minimal.5 Even in the cases the Court did take, the issue was often tangential to
substantive patent law, involving instead constitutional or procedural issues.6 The Supreme Court, therefore, seemed to abdicate
responsibility for developing patent law to the specialized Federal Circuit.7 This state of affairs led Professor Mark Janis to author an
article entitled Patent Law in the Age of the Invisible Supreme Court. That characterization of the Supreme Court
was to be short lived. Starting in around 2000, the Supreme Court became active, if not even
hyperactive, in patent law. This activity is striking for a number of reasons. First, there would seem to be little need for the
Supreme Court to intervene at this rate given the absence of inter-circuit splits. One of the primary reasons the
Supreme Court agrees to hear a case is to resolve a disagreement among the circuit courts on a legal issue.9 With a single appellate court deciding
issues of patent law, no such splits will ever arise. Second, the hyperactivity
in patent law is in sharp contrast to the
relative Supreme Court inactivity in the fields of copyright and trademark, the other primary
forms of federal intellectual property protection. Copyright and trademark appeals are still heard by the
regional circuits, creating the potential for conflicts in the courts in this areas. Such splits, in fact, currently
exist.10 Copyright and trademark law also are important in an information driven economy .
Nevertheless, the Supreme Court has rarely heard cases in these areas and, when they do, they tend to relate to constitutional issues and not core
doctrine, in contrast to much of the Supreme Court’s recent patent jurisprudence.11 The below figure demonstrates the relative dearth of copyright
and trademark cases since 2000, even affording a generous definition of what constitutes a copyright or trademark case.12 Additionally, the
Supreme Court’s intervention is no longer on the periphery of patent law. The cases they have decided go right to the substance of
patent law: the doctrine of equivalents and prosecution history estoppel,13 subject matter eligibility,14 induced infringement,15 the
statutory experimental use defense,16 to name but a few. These two dynamics inexorably lead to the following question: Why is the
Supreme Court so interested in patent law (and not so interested in copyright and trademark)? This Paper explores a variety of
explanations for the Supreme Court’s recent intervention in patent law. In all likelihood, there is no singular motivation for the
Supreme Court’s activity, and it may very well be a combination of some or all of these factors. Nevertheless, exploring these
potential rationales offers insight into the workings of the Supreme Court and could aid those seeking certiorari in framing their
particular issue to garner the Court’s attention.
129
Supreme Court rulings inadvertently affect IP

Holbrook, 13 – Timomthy R. Holbrook, Emory University School of Law; 2013. Manurer
School of Law: Indiana University, Digital Repository @ Maurer Law, IP Theory, “Explaining the
Supreme Court’s Intrest in Patent Law”, Vol.3 Issue.
http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1020&context=ipt pg.4-
KKC
II. Potential Explanations for the Supreme Court’s Foray into Patent Law
The Supreme Court’s intervention in patent law is striking, particularly given the existence of the
Federal Circuit. Then again, patent law is nearly entirely federal law, and in a technologically-
driven economy, changes in the law can have a significant impact on the economic growth of
the United States. Moreover, patent litigation is a form of complex litigation, and various issues
of civil procedure that may arise in a patent case may have implications outside of patent law.
The Patent and Trademark Office (PTO) is an administrative agency and, while somewhat unique in that it lacks substantive rulemaking authority,17
many of the rules that govern judicial review of its activities are similar to those of other agencies.18 Thus, some
of the explanations
regarding recent Supreme Court involvement in intellectual property could simply be the result
of the Supreme Court’s broader, general interests; in other words, there is nothing exceptional taking place. The
extreme level of activity, in sharp contrast to the inactivity in trademark and copyright law, however, suggests that there is something unique about
patent law and the Federal Circuit. This section explores possible explanations for the Supreme Court’s recent activities into two categories: those that
are not patent law/Federal Circuit specific and those that are.
A. Rationales that Do Not Specifically Implicate Patent Law or the Federal Circuit
1. Traditional Supreme Court Issues
Even in the absence of circuit splits, there are certain issues that seem to garner considerable
attention by the Supreme Court. The most obvious issues that the Supreme Court confronts are ones of constitutional law. Such
issues have arisen in a variety of intellectual property cases.
For example, although it pre-dates the recent spate of activity, the

Supreme Court’s decision Markman v. Westview
Instruments dealt with an issue of constitutional law: whether there is a right to a jury trial for claim construction under
the Seventh Amendment.19 That there have been a progeny of cases, ample literature, and even a procedural device named in homage of the decision
cannot undermine the fact that the issue was quite narrow. Arguably, the Supreme Court was motivated by constitutional issues in deciding to review
Warner-Jenkinson Co. v. Hilton Davis Chemical Co., which presented the issue of a right to a jury trial on the doctrine of equivalents; ultimately the
Court decided not to reach the issue.20 The
Supreme Court also addressed whether Congress had abrogated
the sovereign immunity of states to allow suits for patent and trademark infringement,
concluding that Congress had failed to do so.21
The Court has addressed other constitutional issues in intellectual property cases as well. For example, the Supreme Court
addressed due process concerns in Nelson v. Adams USA, Inc., 22 holding that the district court’s application of Rule 15 of the
Federal Rules of Civil Procedure violated due process. The case arose in the context of a patent infringement suit, though liability
was actually against the patentee: the district court awarded costs and fees to the accused infringer in light of the patent holder’s
inequitable conduct. The accused infringer, however, feared that it would not be able to collect the award. The district court
permitted the party to amend the pleading, but then simultaneously amended the judgment, rendering the added party
immediately liable. The Court held such proceedings “did not comply with Rule 15” nor “did they comport with due process.”23
The Court has also had occasion to opine on the limits (or lack thereof) of the Patent and Copyright Clause of the Constitution.24 In
the copyright context, the Supreme Court has reviewed the constitutionality of copyright term extensions and restoration of
copyrights that had fallen into the public domain, finding both constitutional under the Copyright Clause and First Amendment.25
Future challenges based on the Patent and Copyright Clause likely could reach the Supreme Court as a result, such as the current
challenge to the change to the “first-inventor-to-file” regime of the America Invents Act.26
130
Legal Reforms Fail to Solve

The Pro’s demand for legal relief re-establishes the master/slave
relationship by acknowledging the state’s ability to grant or withhold
rights.
Farley 5, (Anthony, professor in Constitutional Law, Criminal Procedure and Legal Theory “Perfecting Slavery” Page 221-
222)
Slavery is with us still. We are haunted by slavery. We are animated by slavery. White-over-black is
slavery and segregation and neosegregation and every situation in which the distribution of material or spiritual
goods follows the colorline. The movement from slavery to segregation to neosegregation to whatever
form of white-over-black it is that may come with post-modernity or after is not toward freedom. The
movement from slavery to segregation to neosegregation is the movement of slavery perfecting itself.
White-over-black is neosegregation. White-over-black is segregation. White-over-black is slavery. All of it is white-
over-black, only white-over-black, and that continually. The story of progress up from slavery is a lie, the
longest lie. The story of progress up from slavery is told juridically in the form of the rule of law.
Slavery is the rule of law. And slavery is death. The slave perfects itself as a slave when it
bows down before its master of its own free will. That is the moment in which the slave
accomplishes the impossible reconciliation of its freedom with its unfreedom by willing itself unfree. 3
When exactly does this perfection of slavery take place? The slave bows down before its master when it
prays for legal relief, when it prays for equal rights, and while it cultivates the field of law
hoping for an answer.
Legal solutions to human rights issues are insufficient and fail to

recognize the history of racist laws that perpetuated anti-black violence.
Henderson 9 [Carol E. Henderson, B.A. University of California, Los Angeles; M.A. California
State University of Dominguez Hills; Ph.D. University of California, Riverside, America and the
Black Body: Identity Politics in Print and Visual Culture, page 30-31, Rosemont Publishing]//JC//
ANGLO-AMERICAN JURISPRUDENCE. ESPECIALLY SINCE THE enlightenment, has sought to create

putatively objective legal doctrines that operate without respect to a particular person's
identity or standing in society. Some commentators have characterized this shift as one that has moved
from status to contract because law has moved away from imposing a social hierarchy and
allowed individuals to determine Social relationships based on their preferences or desires.
Despite this general trend toward creating legal doctrines based on abstracted notions Of personhood, race along with
gender, has continued to shape legal discourse. Law permitted race—based slavery through
1865 and sanctioned race-based segregation until the 1950s. As Ian Haney Lopez demonstrates in his
analysis of immigration, courts applied the rights Of citizenship to white (male) bodies while they
excluded bodies found to be nonwhite from citizenship and/or denied them the full exercise
of their rights.' As the scholarship of Haney Lopez and others documents, African Americans, Latinos, and Asian
Americans consistently challenged their exclusion from and special status within legal discourse. During the Civil Rights
Movement, numerous racial and ethnic groups sought to expand existing doctrines to include
131
historically marginalized groups. Movement lawyers persuaded courts to adopt innovative
strategies for realizing the egalitarian impulses Of Anglo-American law by crafting specific
remedies for African Americans, Latinos, and Asian Americans who had long suffered from
acts of individual and institutional discrimination. During the 1970s, Courts began moving away from
constructing remedies for racism and racial hierarchy—both historical and ongoing. In cases such as Milliken vs. Bradley: and
Bakke vs. Regents of Cali- fornia,s the
United States Supreme Court limited the kinds of integration
strategies that could be created.. Increasingly, the courts gued, as they did in Bakke, any mention of race
was impermissible because "when a State's distribution Of benefits or imposition Of
burdens hinges on ancestry or the color of a person's skin, that individual is entitled to a
demonstration that the challenged classification is necessary to promote a substantial state
interest."' The Court held that the system of admissions for medical school at issue in Bakke failed to meet this strict test
and, in effect, demanded a colorblind or neutral methodology for making judgments and allocating resources.6 In the 1980s,
legal scholars began questioning why legal discourse retreated from questions of racial
equality during the post—civil rights period.' Influenced by the burgeoning of
postmodernism and post- structuralism, many white legal scholars, primarily associated
with critical legal studies (CLS), concluded that legal reasoning was indeterminate due to the
malleability of legal language, the instability of the fact-value distinction, and the commitment to legal process over
substantive equality.* These scholars expresed deep skepticism about rights discourse as well. For CLS, rights discourse
offered merely a fundamental contradiction because those who most need it are the ones
failed by current institutional arrangements and legal doctrines." Peter Gabel, in a famous dialogue
with Duncan Kennedy, asserts that rights "don't exist" and that they ought to be "trashed. "10 For Gabel and Kennedy, rights
discourse constitutes an overbroad, abstract Strat- egy to resolve the forces Of alienation and dehumanization, which civil
rights activism sought to remedy.J1 They advocate abandoning formal legal analysis in favor Of
developing human relationships and communal ties as more fruitful avenues for addressing
the persistence Of inequality. Although they initially join in the conferences and conversations associated with
CLS, legal scholars of color soon found that "racial power was exerting itself within CLS." r These scholars developed
an alternative forum and discourse, critical race theory (CRT), to discuss issues of racialized
power, which CLS tended to ignore." They identify a number of themes and/or methods, which highlighted their
critique of CLS: intersectionality,l' multiple consciousness," interest convergence thesis, 1 e' anti-essentialism," and
storytelling.'" Between 1987 and 1997, CRT flourished within the legal academy.'" Although
numerous positions
existed within the movement, CRT primarily focuses on exploring how racial subjectivity
infused and affected legal thought even when legal discourse has omitted specific mention
of race. Contra CLS claims, the civil rights movement failed to realize its ultimate vision, not because
legal reasoning was indeterminate and thus alienating, but because lawyers, judges, and lawmakers'
commitments to objectivity, neutrality, and legal process masked and enabled racial
hierarchy and oppression.
Legal reform is the perfection of slavery

Farley 5 Anthony, J.D., Harvard Law School, Professor at Boston College, CUNY School of
Law, Thurgood Marshall School of Law, Texas Southern University, and Albany Law School,
“Perfecting Slavery”, January 27th 2005
http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1028&context=lsfp)
Slavery is with us still. We are haunted by slavery. We are animated by slavery. White-
over-black is slavery and segregation and neosegregation and every situation in which the
distribution of material or spiritual goods follows the colorline. The movement from slavery
to segregation to neosegregation to whatever form of white-over-black it is that may come with
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post-modernity or after is not toward freedom. The movement from slavery to segregation to
neosegregation is the movement of slavery perfecting itself. White-over-black is
neosegregation. White-over-black is segregation. White-over-black is slavery. All of it is
white-over-black, only white-over-black, and that continually. The story of progress up
from slavery is a lie, the longest lie. The story of progress up from slavery is told juridically in
the form of the rule of law. Slavery is the rule of law. And slavery is death. The slave
perfects itself as a slave when it bows down before its master of its own free will. That is
the moment in which the slave accomplishes the impossible reconciliation of its freedom
with its unfreedom by willing itself unfree.3 When exactly does this perfection of slavery
take place? The slave bows down before its master when it prays for legal relief, when
it prays for equal rights, and while it cultivates the field of law hoping for an answer.
The slave’s free choice, the slave’s leap of faith, can only be taken under conditions of legal
equality. Only after emancipation and legal equality, only after rights, can the slave
perfect itself as a slave. Bourgeois legality is the condition wherein equals are said to enter
the commons of reason4 or the kingdom of ends5 or the New England town meeting of the
soul to discuss universalizable principles, to discuss equality and freedom. Much is made of
these meetings, these struggles for law, these festivals of the universal. Commons, kingdom,
town meeting, there are many mansions in the house of law, but the law does not forget its
father, as Maria Grahn-Farley observes: The law of slavery has not been forgotten by the law
of segregation; the law of segregation has not been forgotten by the law of neosegregation.
The law guarding the gates of slavery, segregation, and neosegregation has not forgotten its
origin; it remembers its father and its grandfather before that. It knows what master it serves;
it knows what color to count.6 To wake from slavery is to see that everything must go,
every law room,7 every great house, every plantation, all of it, everything. Requests
for equality and freedom will always fail. Why? Because the fact of need itself means that
the request will fail. The request for equality and freedom, for rights, will fail whether the
request is granted or denied. The request is produced through an injury.8 The initial
injury is the marking of bodies for less—less respect, less land, less freedom, less education,
less. The mark must be made on the flesh because that is where we start from. Childhood is
where we begin and, under conditions of hierarchy, that childhood is already marked. The mark
organizes, orients, and differentiates our otherwise common flesh. The mark is race, the mark is
gender, the mark is class, the mark is. The mark is all there is to the reality of those essences—
race, gender, class, and so on—that are said to precede existence. The mark is a system.9
Property and law follow the mark. And so it goes. There is a pleasure in hierarchy. We begin
with an education in our hierarchies. We begin with childhood and childhood begins with
education. To be exact, education begins our childhood. We are called by race, by gender, by
class, and so on. Our education cultivates our desire in the direction of our hierarchies. If we
are successful, we acquire an orientation that enables us to locate ourselves and our bodies
vis-à-vis all the other bodies that inhabit our institutional spaces. We follow the call and
move in the generally expected way. White-overblack is an orientation, a pleasure, a desire
that enables us to find our place, and therefore our way, in our institutional spaces. This is
why no one ever need ask for equality and freedom. This is why the fact of need means that the
request will fail. The request for rights—for equality—will always fail because there are always
ambiguities. To be marked for less, to be marked as less han zero, to be marked as a negative
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attractor, is to be in the situation of the slave. The slave is not called. The slave is not free. The
slave is called to follow the calling that is not a calling. The slave is trained to be an object; the
slave is trained, in other words, to not be. The slave is death. Death is the end of ambiguity. To
be in the situation of the slave is to have all the ambiguities organized against you. But there are
always ambiguities, one is always free. How, then, are the ambiguities organized? How is
freedom ended? The slave must choose the end of ambiguity, the end of freedom,
objecthood. The slave must freely choose death. This the slave can only do under conditions
of freedom that present it with a choice. The perfect slave gives up the ghost and commends
its everlasting spirit to its master. The slave’s final and perfect prayer is a legal prayer for
equal rights. The texts of law, like the manifest content of a dream, perhaps of wolves, may tell
a certain story or an uncertain story. The certainty or uncertainty of the story is of absolutely no
consequence. The story, the law, the wolves’ table manners, do not matter. The story, the law,
the story of law, the dream of wolves,10 however, represents a disguised or latent wish that
does matter. The wish is a matter of life or death. We are strangers to ourselves. The dream of
equality, of rights, is the disguised wish for hierarchy. The prayer for equal rights is the
disguised desire for slavery. Slavery is death. The prayer for equal rights, then, is the
disguise of the deathwish. The prayer for equal rights is the slave’s perfect moment. The
slave’s perfect prayer, the prayer of the perfect slave, is always answered. The slave, however,
knows not what it does when it prays for rights, for the slave is estranged from itself. Of its
own inner strivings it knows not. The slave strives to be property, but since property cannot own
property the slave cannot own its inner strivings. The slave strives to produce the final
commodity— law. In other words, the slave produces itself as a slave through law. The slave
produces itself as a slave (as a commodity) through its own prayer for equal rights. And
that prayer is all there is to law. The slave bows down before the law and prays for equal
rights. The slave bows down before the law and then there is law. There is no law before the
slave bows down. The slave’s fidelity becomes the law, and the law is perfected
through the slave’s struggle for the universal, through the slave’s struggle for equality
of right. The slave prays for equality of right. Rights cannot be equal. Its perfect prayer is
answered; the law’s ambiguities open, like the gates of heaven, just above its head. And all of
the white-over-black accumulated within the endless ambiguities of law rains down. White over-
black is slavery and slavery is death. Death is the end of forever. The end of forever is perfection
and perfection, for us, seems divine, beyond the veil, beyond death; hence, the end of forever.
The murder of Trayvon Martin has sent a shockwave throughout the mass media and
political system – however, Trayvon is but one piece of the puzzle – we live in an anti-
black society – nowhere is this more evident than the legal system – black bodies are
marked as “born dead” – they are not delegitimized because they were never
legitimized to begin with – this system of gratuitous violence makes possible mass
extermination
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Brady 12 (Nicholas Brady, activist scholar, executive board member of Leaders of a Beautiful
Struggle, BA in philosophy from Johns Hopkins, PhD student at the University of California-Irvine
Culture and Theory program, 10-26-12, “The Flesh Grinder: Prosecutorial Discretion and the
Terror of Mass Incarceration,”
http://academia.edu/2776507/The_Flesh_Grinder_Prosecutorial_Discretion_and_the_Quotidia
n_Terror_of_Mass_Incarceration) gz
The recent murder of Trayvon Martin brought the national conversation back to a topic that had
been repressed for the myth of a post-racial America propagated since the election of Barack
Obama to the presidency: the fundamental openness of the black body to wanton and excessive
abuse and “premature death” (Gilmore, 28). That the national narrative around Martin’s death,
even the narratives built by black political and civil leaders, only had Emit Till to compare his
death to is example par excellance of the complete lack of any language we have to discuss the
machinations that make a phrase such as “black death” into a redundancy. Trayvon Martin was
not a singular case but was one of 120 black people killed extra-judicially (by police officers, security
officials, and vigilante justice-seekers) in 2012 between January and July . That every 36 hours on average a
black life is taken extra-judicially means that Trayvon Martin is not exceptional, but we do not
have a language to deal with either the exceptional or the quotidian. Into the abyss, though the demand
for justice, something productive happened: the rallying cry for justice made an invisible and ethereal part of the justice system into
something a little more material. The
call to arrest and charge George Zimmerman brought our attention
to the role of the Prosecutor in the criminal punishment system. After the protests, statement from the
President, and daily media blitzes, a special prosecutor was assigned to the case to meet the calls for justice. Angela Corey would
become the face for an area of the law that is both ubiquitous and unthought. It seems she understood this for her statement,
before officially giving the charge, set up a context for evaluating prosecutors, ¶ The Supreme Court has defined our role as
Proscutors [as] not only “ministers of justice” but “seekers of the truth.”… Every single day our prosecutors across this great country
handle difficult cases and they adhere to that same standard: a never ending search for the truth and a quest to always do the right
thing for the right reason. There is a reason cases are tried in a court of law and not in the court of public opinion or the media.
Because details have to come out in excruciating and minute fashion. Detail by detail, bit of evidence by bit of evidence. And it is
only then, when the Trier of fact whether judge or jury, gets all the details that then a decision can be rendered. ¶ Corey is laboring
to legitimize a system that took weeks to actually arrest George Zimmerman, yet this labor represses her own case history, for
example the case of Marissa
Alexander. Alexander is a mother who was convicted of attempted murder
because she shot a warning shot at the father of her children who has admitted to beating her
on several occasions before. Alexander was arrested on spot and charged within days in a case
where the “stand your ground” defense was also being called upon. This supposed contradiction of
methods that meet different bodies is the norm of the criminal punishment system, and this paper will attempt to string out some
parts of the structure that make it so. ¶ In many disciplines there has been renewed attention given to mass incarceration. Yet, in
spite of the growing level of multidisciplinary scrutiny on police surveillance and violent gulags, a major actor has slipped through
virtually untouched in the humanities' attention to prisons. This major actor, regularly described in criminology and legal scholarship
as the most powerful agent in the criminal punishment system, is the Prosecutor. The office of the prosecutor exists in a place where
matter doesn't matter. Or put differently, the prosecutor’s
agency is assembled where black matter no
longer matters and where what matters, the happenings of the human and the quest for civil
justice, can only be produced through the quotidian grinding and destruction of black flesh .¶ This
paper will seek to shine a light, or better yet a shadow, on the white knights of the justice system. While one would think they know
the job of a Prosecutor given its ubiquity on television crime dramas and movies, the mundaneness of their actual day-to-day
activities are mystified by television's fascination with the drama of the trial, whether fictional or "real." In fact, it is rare that you will
find a prosecutor who takes even 10 percent of their cases to trial. Over 90 percent of cases are settled through a plea bargain
where the defendant will agree to plead guilty usually for the guarantee of less time, parole, or a lighter charge. As one law
professor put it, the plea bargain is not an addendum to the criminal justice system, it is the criminal justice system (Scott and
Stuntz, 1912). In spite of its centrality, there is little literature on the inner-workings of the plea bargain outside of schematic analysis
in criminology. Instead of focusing on the theatrics of the trial, this paper will analyze the day-to-day grind of the plea bargain in
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order to explicate the quotidian terror that lies at the heart of prosecutorial discretion. ¶ From day-to-day a Prosecutor can be
working on anywhere between 20 to 100 cases at a time (Heumann, 98). While a Prosecutor is given wide discretion to charge a case
the way they want, there are hierarchies that determine the norms and procedures of each office. There are the district attorneys
that the general population votes into office and the deputy attorneys that answer directly to him or her. Underneath them are the
line prosecutors who work on the majority of the cases but whose decisions generally follow the established protocols of the
veteran prosecutors and deputies. New prosecutors often come straight from law school with lofty dreams of becoming courtroom
heroes only to learn that their job is much more akin to assembly-line justice. Legal scholar Abraham Blumberg describes this as the,
“emergence of ‘bureaucratic due process,’… consist[ing] of secret bargaining sessions [and] employing subtle, bureaucratically
ordained modes of coercion and influence to dispose of large case loads” (Blumberg, 69). ¶ While each office is different from the
next, there is a stunning amount of unity at the procedural level. Deputy district attorneys will reject thirty to forty percent of cases
the police send to them on face. The remaining 60 percent are considered suspects that are, according to the evidence provided,
conclusively guilty. For the Prosecutor, these cases would be slam-dunk wins in front of a jury (Lewis, 51). This begs the question:
What is the dividing line between cases that are charged and cases that get dropped by Prosecutors? ¶ Some statistics on the racial
component of sentencing might lead us to an answer. In terms of drug crimes, according to a comprehensive
report by Human Rights Watch, blacks are 14 percent of drug users, but are 37 percent of
people arrested for drug possession, and are anywhere between 45 to 60 percent of those
charged . These strings of numbers reveal an anti-black trajectory: the cases that the Prosecutor
overwhelmingly pursues are black cases, the ones he drops are overwhelmingly non-black. A
defense attorney called these for-sure-guilty cases “born dead.” This is a curious phrase, but
when considering the historic connection between blackness and crime dating back to the
inception of the national polity through slavery, the defense attorney’s phrasing gets us to a
much more paradigmatic argument. Walt Lewis, a Los Angeles prosecutor, describes a “criminal justice”
continuum where bodies are transformed from being “free” to being “incarcerated” (Lewis, 20).
One is first arrested by the police and becomes a “suspect.” If the prosecutor decides to charge,
then you go from being a “suspect” to a “defendant.” Finally if you are found guilty, you go from
being a “defendant” to a “convict.” This process describes a temporality that transforms the
“human” into the incarcerated “inhuman.” As violent as this process can be, the black’s fate is
fundamentally different and more terrifying. The black is arrested, charged, and convicted at
disproportionate rates because we were never actually “suspects” or “defendants.” Instead, we
were always criminals, always already slaves-in-waiting. Instead of a continuum, the black body
floats in a “zone of non-being” where time and transformation lose all meaning. Cases involving
black bodies do not need to be rock-solid in terms of facts for their bodies have already been
marked by the law as criminal (Fanon, 2). Thus cases involving black bodies are always for-sure
victories, are always already “born dead.” ¶ In an interesting case that made it all the way to the Supreme Court
titled United States versus Armstrong, a group of black defendants levied a critique similar to this paper’s argument . A group of
black men were brought on charges of possessing 50 grams of crack cocaine. Unlike a normal defense
where the details of the state’s accusation would be called into question, the defense instead argued that the
prosecution selectively charges black people in cases involving crack cocaine. The first argument of the
defense was that the majority of crack cocaine users in California are actually whites, not black people. The second argument of the
defense used testimonies from government lawyers to prove that of all 841 cases the state brought against people possessing crack
cocaine, all of them were black. Using these two claims, the defense said there was adequate proof to show that prosecutors were
using unconstitutional means, racial markers, to select who would be charged and who wouldn’t be charged. According to past
rulings by the Supreme Court, if selective prosecution can be proven then that is adequate grounds to vacate the sentence, even if
the defendants were caught “red-handed.” Against this defense, the prosecution counter-argued that it does not selectively
prosecute based on race, but instead on fact and circumstance. The district court that initially heard the appeal ruled that the state
should turn over records of the 841 cases in question to prove who was right in the dispute. The state refused to reveal its
documents and instead appealed the decision all the way up to the Supreme Court. Overturning the district and federal circuit court,
the Supreme Court ruled in favor of the prosecution for a few reasons. The first reason Rehnquist
gave was that it is not in the best interest of the government’s war on crime to monitor
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prosecutors. Rehnquist argued that the prosecutor must have the freedom to operate in the way she sees fit. The second
and most important reason Rehnquist gave was by far the most explicitly racist and I will quote
it in full: quote “a published 1989 Drug Enforcement Administration report concluded that
"[l]arge scale, interstate trafficking networks controlled by Jamaicans, Haitians and Black street
gangs dominate the manufacture and distribution of crack.… [and] the most recent statistics of
the United States Sentencing Commission… show that: More than 90% of the persons sentenced
in 1994 for crack cocaine trafficking were black.” . The Supreme Court answered the defendant’s accusation of
selective prosecution by arguing that such a prosecution strategy is legitimate because it can be verified through statistics that black
people are the major users and distributors of crack cocaine. To word it differently, the
Supreme Court ruled that it
was in the state’s interest to terrorize black communities because we are the most heinous drug
users in the country. To be black is to be marked as a danger that must be controlled, seized,
and incarcerated. Prosecutors act within and perpetuate this matrix of violence that precedes
discourse. When a Prosecutor sees a case with a black body, he knows the same statistic the
Supreme Court quoted and he knows, if not consciously then unconsciously, that this case is
already done, already guilty, already “born dead.”
State measures only reproduce anti-black violence

Heitzig 2015 (Nancy A., Professor of Sociology & Critical Studies of Race and Ethnicity at
St. Catherine University, "On The Occasion Of The 50th Anniversary Of The Civil Rights Act
Of 1964: Persistent White Supremacy, Relentless Anti-Blackness, And The Limits Of The
Law." Hamline University's School of Law's Journal of Public Law and Policy 36.1: 54-79)
In the post -bellum era, the stain of slavery has been¶ impossible to remove.
Constitutional Amendments, Supreme Court¶ rulings, and legislation
notwithstanding, the exploitation of¶ captive/caged Black labor continues, largely
uninterrupted. As¶ Dillon observes:¶ Slavery’s production of social and biological death did not¶
end with emancipation, did not cease with the end of segregation, and¶ refused to
heed under civil rights legislation. Its logic and power exceeds the realm of law. The
past comes back not just to haunt, but¶ to structure and drive the contemporary
operations of power.25¶ The primary mechanism for the perpetual denial of full¶
citizenship has been the criminal law, with its attendant systems of¶ policing and
punishment. As Frederick Douglas observed nearly 150¶ years ago, there is no escaping
“the general disposition in this country¶ to impute crime to color.”¶ 26 Post slavery, the
criminalizing narrative¶ has been a central cultural feature of on-going efforts at
oppression;¶ from convict lease/plantain prison farms to the contemporary prison¶
industrial complex, the control of black bodies for profit has been¶ furthered by the
criminal justice system.¶ A substantial body of work documents the post -bellum¶
transformation of Black Codes into Slave Codes, slave patrols into¶ police forces,
plantations into prisons, and, in to post-Civil Rights¶ era, into the contemporary prison
industrial complex.27 At no point¶ was the law able to stop this; to the contrary, the law
and its¶ enforcement apparatus remain consistent, albeit shifting,¶ centerpieces of white
supremacy and anti-Blackness. A. THE POST -BELLUM ERA: CONVICT LEASE¶ AND
PLANATION PRISONS¶ In the aftermath of the Civil War, the passage of the 13th, 14¶ th¶ ,¶
and 15th Amendments seemed to promise an end the abolition of¶ slavery, due process and
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equal protection at both state and federal¶ levels, and full citizenship via the franchise (at
least for Black men).¶ Angela Y. Davis, in Are Prisons Obsolete?, traces the initial¶ rise of the
penitentiary system to the abolition of slavery; “[I]n the¶ immediate aftermath of slavery,
the southern states hastened to¶ develop a criminal justice system that could legally restrict
the possibilities of freedom for the newly released slaves.”¶ 28¶ There was¶ a subsequent
transformation of the Slave Codes into the Black Codes¶ and the plantations into prisons.
Southern states quickly passed laws¶ that echoed the restrictions associated with slavery,
re-inscribed the¶ property interests of “whiteness,” and criminalized a range of¶ activities
of the perpetrator was black.29 These laws were enforced¶ by former slave patrols turned
police agencies, with the assistance of¶ extra-legal militias, and the white citizenry in
general, who are¶ merely protected by these same police, but per Wilderson “not¶ simply
“protected” by the police, they are — in their very¶ corporeality — the police.”¶ 30¶ All this
becomes possible because the 13th Amendment –¶ “Neither slavery nor involuntary
servitude shall exist in the United¶ States” – contained a dangerous loophole- “except as a
punishment¶ for crime.” This allowed for the conversion of the old plantations to¶
penitentiaries – the 18,000 acre Louisiana Penitentiary at Angola is a¶ case in point – and
the creation of prison “farms” such as Parchmann¶ in Mississippi and the infamous Tucker Prison Farm and
Cummins¶ Prison Farm in Arkansas.31 Sheriffs, jailors and wardens leased out¶ entire prisons to private contractors who
literally worked thousands¶ of prisoners to death in labor camps, on chain gangs, and in prison¶ farms. These prisoners were
largely black; in the post-Civil War¶ South the racial composition of prison and jail populations shifted¶ dramatically from
majority White to majority Black, and in many¶ states increased ten-fold.32¶ As Davis notes, “the expansion of the¶ convict
lease system and the county chain gang meant that the¶ antebellum criminal justice system, defined criminal justice largely¶ as
a means for controlling black labor.” The re-institutionalization of slavery via the criminal legal¶ system also served to
effectively undo the newly acquired 15th¶ Amendment right to vote. This was legislatively curtailed by the ¶ tailoring of felony
disenfranchisement laws to include crimes that¶ were supposedly more frequently committed by blacks. In the postCivil¶ War
period, existing felony disenfranchisement laws were¶ expanded dramatically, especially in the South, and modified to ¶
include even minor offenses. This legislation, in combination with¶ literacy tests, poll taxes, grandfather clauses and
ultimately, the threat¶ of white terror, essentially denied Blacks the right to vote until the ¶ mid-twentieth century.¶ The 14th
Amendment’s promise of due process and equal¶ protection was insufficient to override this continued economic¶ exploitation
and civic exclusion. This was due to a series of Supreme¶ Court rulings that interpreted the 14th in support of state’s rights, ¶
white supremacy, and against Black inclusion. In United States v. ¶ Cruikshank (1876), the Supreme Court ruled that that “The¶
fourteenth amendment prohibits a State from depriving any person¶ of life, liberty, or property, without due process of law;
but this adds¶ nothing to the rights of one citizen as against another.” ¶ 34This¶ decision, in a case involving the bloody Colfax
Massacre, forbade¶ the Federal Government from relying on the Enforcement Act of¶ 1870 to prosecute actions by white
paramilitary groups that had been¶ violently suppressing the Black vote. 35 This decision paved the way¶ for nearly a century
of unchecked white extra-legal violence and¶ lynching that served to enforce white supremacy in both law and¶ practice.¶ On
matters of racial equality, the most famous Supreme Court ¶ ruling of the era was Plessy v. Ferguson (1896).36 Post slavery,
white¶ supremacy in the law was accomplished by the introduction of a¶ series of segregationist Jim Crow laws that mandated
Black¶ exclusion from white spaces, even in public accommodations. In a¶ challenge to legalized segregation of public
transportation in the state of Louisiana, Plessy argues that these laws have denied him equality¶ before the law. The majority
disagrees and sets forth the principle of¶ “separate but equal.” Justice Brown (1896) writes for the majority, ¶ It is claimed by
the plaintiff in error that, in an mixed¶ community, the reputation of belonging to the¶ dominant race, in this instance the
white race, is¶ ‘property,’ in the same sense that a right of action or ¶ of inheritance is property. . . We are unable to see¶ how
this statute deprives him of, or in any way¶ affects his right to, such property. If he be a white¶ man, and assigned to a colored
coach, he may have¶ his action for damages against the company for being¶ deprived of his so-called ‘property.’ Upon the
other¶ hand, if he be a colored man, and be so assigned, he¶ has been deprived of no property, since he is not¶ lawfully entitled
to the reputation of being a white¶ man.37¶ The sole dissenter in Plessy sets up the juxtaposition between ¶ Jim Crow and
color-blindness that frames the contemporary debate¶ on race today. Justice Harlan, while acknowledging the reality of ¶ white
supremacy, decries its support with the law, but with cold¶ comfort:¶ The white race deems itself to be the dominant race¶ in
this country. And so it is, in prestige, in¶ achievements, in education, in wealth, and in power.¶ So, I doubt not, it will continue
to be for all time, if¶ it remains true to its great heritage,
and holds fast to¶ the principles of
constitutional liberty. But in view of¶ the constitution, in the eye of the law, there is in this¶
country no superior, dominant, ruling class of¶ citizens. There is no caste here. Our
constitution is¶ color-blind, and neither knows nor tolerates classes among citizens. In
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respect of civil rights, all citizens¶ are equal before the law.¶ 38¶ Even post-Emancipation,
Blacks had no claim to the property¶ rights of whiteness, nor full and equal access to rights
of citizenship¶ that entailed. White supremacy and anti-Blackness persisted in law,¶ even in
the face of Amendments to the Constitution, which purported¶ to undo the same.¶ B. THE
POST-CIVIL RIGHTS ERA, MASS¶ INCARCERATION AND “COLOR-BLINDNESS¶ The
Supreme Court ruling in Brown v. the Board of¶ Education of Topeka, Kansas (1954) is
often used as the benchmark¶ for chronicling the start of the Civil Rights Movement of the
1950s¶ and 1960s.39 The Court’s unanimous rejection of Plessy’s “separate¶ but equal”
provided a new Federal framework with which to¶ challenge Jim Crow segregation on the
state and local levels. It¶ offered the back drop for the Montgomery bus boycott, the
resistance¶ in Birmingham, Bloody Sunday, the voter registration drives of¶ Freedom
Summer, and ultimately, passage of the Civil Rights Act of¶ 1964, The Voting Right Act of
1965, the Fair Housing Act of 1968,¶ and the 24th Amendment to the Constitution.40¶
While there was hope again that the law itself could be¶ pressed into the service of racial
equality, those victories now seem¶ bittersweet. Bell argues that the Brown decision and the
ensuing¶ Federal legislation were “silent covenants” of interest-convergence,¶ where “perceived self-interest of whites rather
than the racial¶ injustices suffered by Blacks have been the major motivation in¶ racial-remediation policies.”¶ 41 Judge Robert
L. Carter, one of the¶ attorneys who argued Brown goes further, “. . .the fundamental vice¶ was not legally enforced racial
segregation itself; this was a mere byproduct, a symptom of the greater and more pernicious disease -¶ white supremacy.”¶
42 Legally supported segregation was uprooted¶ without dislodging either white supremacy or anti-Blackness, now¶ cloaked
in race-neutral rhetoric of “color-blindness”.¶ The
“color-blind” Constitution and the race-neutral¶
requirement of Federal Civil Rights legislation now serves as¶ convenient cover for
the persistence of institutionalized racism.¶ Racially coded but race-neutral rhetoric
is widely used in debates¶ over welfare reform, affirmative action, and particularly
“law and¶ order” criminal justice policy;43 in all these cases, the coded racial¶ sub-
text reads clearly, and the resultant policies, while purportedly¶ “race neutral,” have
resulted in disproportionate harm to people of¶ color, especially African Americans.
While race is now widely the¶ text/subtext of political debate, systemic racism still
remains largely¶ absent from either political discourse or policy debates of all sorts,¶
including those related to criminal injustice.¶ In the Post-Civil Rights Era, there has been a
corresponding¶ shift from de jure racism codified explicitly into the law and legal¶ systems to a de facto racism where people
of color, especially¶ African Americans, are subject to unequal protection of the laws, ¶ excessive surveillance, police terror,
extreme segregation, a brutal¶ and biased death penalty, and neo-slave labor via incarceration all in¶ the name of “crime
control.”¶ 44¶ “Law and order” criminal justice¶ policies are all guided by thinly coded appeals to white fears of high¶ crime
neighborhoods, “crack epidemics,” gang proliferation, juvenile super – predators, urban unrest, school violence, and more.¶ In
all these case, the sub-text reads clearly — fear of brown and¶ especially Black people.¶ As
before, law, policing
and punishment are central to the ongoing¶ exclusion of Blacks from civic life. Post
slavery, the¶ criminalizing narrative was a cultural feature of on-going efforts at¶
oppression; from convict lease/plantain prison farms to the¶ contemporary prison
industrial complex the control of black bodies¶ for profit has been furthered by the
criminal justice system.45¶ “Slave¶ Codes” become Black Codes and now Black Codes become gang¶ legislation,
three-strikes and the War on Drugs in the persistent¶ condemnation of Blackness.¶ 46 As before, the criminal legal system is¶
the primary mechanism for undoing the promised protections of¶ Federal Civil Rights legislation and constitutes again, the
major¶ affront to the fulfillment of the 13th, 14th and 25th Amendments.¶ The United States has the highest incarceration rate
in the¶ world, with a population of 2.3 million behind bars that constitutes¶ 25% of the world’s prisoners.47 The increased
rate of incarceration¶ can be traced to the War on Drugs and the rise of lengthy mandatory¶ minimum prison sentences for
drug crimes and other felonies. These¶ policies have proliferated, not in response to crime rate or any¶ empirical data that
indicates their effectiveness, due to newfound¶ sources of profit for prisons.48 As Brewer and Heitzeg (2008)¶ observe:¶ The
prison industrial complex is a self-perpetuating¶ machine where the vast profits (e.g. cheap labor,¶ private and public supply
and construction contracts, job creation, continued media profits from¶ exaggerated crime reporting and crime/punishment¶
as entertainment) and perceived political benefits¶ (e.g. reduced unemployment rates, “get tough on¶ crime” and public safety
139
rhetoric, funding increases¶ for police, and criminal justice system agencies and¶ professionals) lead to policies that are
additionally¶ designed to insure an endless supply of “clients” for¶ the criminal justice system (e.g. enhanced police¶ presence
in poor neighborhoods and communities of¶ color; racial profiling; decreased funding for public¶ education combined with
zero-tolerance policies and¶ increased rates of expulsion for students of color;¶ increased rates of adult certification for
juvenile¶ offenders; mandatory minimum and “three-strikes”¶ sentencing; draconian conditions of incarceration¶ and a
reduction of prison services that contribute to¶ the likelihood of “recidivism”; “collateral¶ consequences”-such as felony
disenfranchisement,¶ prohibitions on welfare receipt, public housing, gun¶ ownership, voting and political participation,¶
employment- that nearly guarantee continued¶ participation in “crime” and return to the prison¶ industrial complex following
initial release.)49¶ The 13th Amendment claim of abolition remains unfulfilled,¶ as the neo- slavery of the prison industrial
complex becomes the¶ current vehicle for controlling Black bodies for political and¶ economic gain. The trend towards mass
incarceration is marred by¶ racial disparity. While 1 in 35 adults is under correctional supervision¶ and 1 in every 100 adults
is in prison, 1 in every 36 Latino adults , 1¶ in every 15 black men, 1 in every 100 black women, and 1 in 9 black men ages 20 to
34 are incarcerated.50¶ Despite no statistical¶ differences in rates of offending, approximately 50% of all prisoners¶ are black,
30% are white, and 20% are Latino;.51 These disparities¶ are indicative of differential enforcement practices rather than any¶
differences in criminal participation. This is particularly true of drug¶ crimes, which account for the bulk of the increased
prison¶ population. Even though Blacks and whites use and sell drugs at¶ comparable rates, African Americans are anywhere
from 3 to 10¶ times more likely to be arrested, and additionally likely to receive ¶ harsher sentences than their white
counterparts.52¶ It is no mistake that the subtitle of Michelle Alexander’s epic¶ indictment of The New Jim Crow is this: Mass
Incarceration in the¶ Age of Color-blindness 53 The Drug War, from start to finish, has¶ always been racist: draconian
sentences, crack versus powder¶ disparities, police patrol patterns, stop/frisk practices, racial profiling¶ and death at the
hands of law enforcement, arrests, convictions,¶ sentencing including death and incarceration, and collateral¶ consequences
that include bans on voting, bars to employment,¶ education, housing and economic assistance, and the diminishment¶ of
parental rights, all fall heaviest on Blacks.54 This racial disparity¶ is by design. As Alexander observes criminal justice policies
serve¶ to regulate and segregate communities of color in the Post-Civil¶ Rights era: What has changed since the collapse of Jim
Crow has less to¶ do with the basic structure of our society than with the language we¶ use to justify it. In the era of
colorblindness, it is no longer socially¶ permissible to use race, explicitly, as a justification for ¶ discrimination, exclusion, and
social contempt. So we don’t. Rather¶ than rely on race, we use our criminal justice system to label people ¶ of color “criminals”
and then engage in all the practices we¶ supposedly left behind. Today it is perfectly legal to discriminate¶
against criminals in nearly all the ways that it was once legal to¶ discriminate against
African Americans. Once you’re labeled a felon,¶ the old forms of discrimination—
employment discrimination,¶ housing discrimination, denial of the right to vote,
denial of¶ educational opportunity, denial of food stamps and other public¶ benefits,
and exclusion from jury service—are suddenly legal. As a¶ criminal you have scarcely more rights,
and arguably less respect,¶ than a black man living in Alabama at the height of Jim Crow. We¶ have not ended
racial caste in America; we have merely redesigned¶ it.
The Pro’s reliance on the state misses the boat – anti-blackness is

encoded in the very fabric of American society and the Constitution –
any attempt to work through the state only increases its power.
Robinson 15 (Janessa, Janessa E. Robinson earned her Bachelor of Arts degree in
Communication with a minor in Philosophy from Tulane University in New Orleans, LA. She
is a Black feminist and racial justice activist. 4/17, “Mass Incarceration: The Latest System
Of Social Control Over Blackness”, http://www.ravishly.com/2015/04/17/system-will-not-
indict-itself-why-mere-reform-wont-change-thing)
Every day there is a different Black child,
“I’m sick and tired of being sick and tired.” —Fannie Lou Hamer∂
woman, or man who has been killed at the hands of state-sanctioned violence. Every day a
new video surfaces depicting the inhumanity with which Black life is regarded. Every day there is
a new hashtag and a new campaign to indict a killer cop.∂ This demoralizing narrative seeks retroactive justice as we endure a
never-ending cycle of mourning each victim. It is unbearable. Fallen victims absolutely deserve to be honored in our words
and actions, and perhaps it is necessary to integrate their stories into attacking the systems of oppression responsible for their
deaths.∂ But allowing
the media to center individual narratives of police officers who have
senselessly stolen Black lives perpetuates the “bad apple” myth. This myth says that
individual officers or departments lack necessary training, decorum, or resources to
140
properly serve communities. It denies the reality that American police departments’
interaction with Black communities is rooted in the gruesome past of slave patrols sent out to chase, terrorize,
capture, and return Black bodies to slave owners.∂ The “bad apple” myth tells us that there are good
cops and bad ones that, with just a bit of reform, could easily be turned into good
cops. This narrative is harmful to developing an understanding on how systems of
oppression function; good and bad cops are irrelevant when all law enforcement officials are insulated by a system
that bestows upon them unfettered authority. Good and bad cops are irrelevant to Black lives when American law enforcement
culture indoctrinates people into anti-Blackness ideologies.∂ The
idea that Blacks are targeted by the legal
system due to some inherent inclination to commit crimes is routinely debunked and yet these stereotypes
persist—ubiquitously—in media and police practice. In 2014, the American Civil Liberties Union released a study done in
Illinois determining that Black and Latinos are four times more likely to be searched by police while whites were far more
likely to possess contraband. There are also numerous studies detailing how implicit racial bias is responsible for unfoundedly
perceiving Blacks as more dangerous than other ethnic groups.∂ With so much data negating stereotypes—why does the
public fear Blackness?∂ Anti-Blackness
is embedded into the fabric of American society. This
is evident in the three-fifths compromise within the U.S. Constitution, which
commodified Blackness during slavery, and the terrors of Jim Crow. Even prior to
snatching Black bodies and shipping them to the Western world, imperialists set a
precedent for depicting Blackness as subhuman. They kept detailed accounts viciously depicting
African people as uncivilized savages. Throughout history, each of these systems justified the vile treatment of Blacks by
dehumanizing the population.∂ The current system of social control over Blackness is mass incarceration. In The New Jim
Crow, Michelle Alexander articulates how mass incarceration was ushered in using policies with race-neutral language in a
less overtly racist society after Jim Crow was dismantled. The result of mass incarceration is that an overwhelming amount of
Blacks are under social control through prison, probation, or parole. Criminalizing Blackness legally reinstitutes the
oppression of Jim Crow as felons are barred from public benefits, participating on juries, disenfranchised as well as subjected
to housing, education, and employment discrimination.∂ Here are staggering facts on mass incarceration:∂ ∂ President Reagan
declared his drug war in 1982, three years prior to the crack epidemic. In the late 1990s, the CIA admitted it had previously
run operations supporting Nicaraguan gangs who manufactured crack which ended up in Black communities. Recycling “tough
on crime” rhetoric from the 1950s that purported Black activists as criminals and saturating media with imagery of “the
criminal Black man,” Reagan launched a full-fledged attack on Black communities.∂ Local and state police militarization was
encouraged, with federal grants supported by every seated U.S. President from Ronald Reagan to George W. Bush. This created
an actual war, positioning police as occupying forces terrorizing Black communities. Programs offered to local police allow
access to Pentagon military weaponry and tactical training from DEA programs to boost up their SWAT teams. Through civil
asset forfeiture, police are allowed to maintain for their departments cash, vehicles, controlled substances, and other suspects’
possessions seized during arrest even if later found innocent of a crime.∂ Through incentivizing the “war on drugs” with
grants, equipment, and rhetoric, America has ostensibly incentivized a war on Blackness. War causes
causalities and thus communities bear witness to souls snatched from the bodies of Black girls and boys.∂ Reforms such as
equipping officers with body cameras or providing them with additional training are suggested to combat extrajudicial killings
of Blacks. However, these solutions increase resources of the police state while providing the public-filmed
terror on Black bodies in high definition—if police even turn their body cams on. Efforts to change the grand jury system for
indicting officers and forcing the Department of Justice to lead investigations are not viable long-term solutions for four major
reasons:∂ Neither prevents future extrajudicial killings∂ The DOJ is an inseparable tool of the police state with its own racist
history∂ The
injustice system cannot be trusted to indict and convict itself∂ Jail time veritably
does not deter crime and police are simply criminals by another name∂ When one
realizes that society has
maliciously constructed Black bodies to appear inherently violent, subhuman, and
profitable—it becomes apparent that current systems of governance cannot reform
away our oppression. Systems are emotionless; they cannot be reasoned with. The systems we have today were
built to hoist up one person’s privilege on the back of another person’s oppression. Suggesting reformation as a means of
eradicating oppression is to say that the system will cede its own power to the oppressed—this is entirely unheard of. ∂ It is
time we begin to imagine a society that is free of these inherently poisonous systems incapable of governing populations
humanely. Imagine what a society with a new system looks like, what it feels like, and how we can build it.
141
Affirmative
142
Mental Competence Flaw

Plea bargaining assumes mental competence
1163-4
A. How Decision-Making Relates to Voluntariness Assumptions By way of refresher, let

us return for a moment to the primacy of competency determinations regarding the
plea. A defendant's competency is an important part of the constitutionality of
plea-bargaining because competency in part determines whether a plea is entered
knowingly and voluntarily. n482 In Masthers, a plea is referred to as "an intentional
relinquishment [...] of a known right or privilege," therefore a valid plea must be made
by a defendant whom retains the mental competence for directed action. n483 The use
of the word "intentional" suggests that the decision to plead guilty is a self-interested
goal-oriented action with a specific purpose and not just a reaction to specific
circumstances. n484 A defendant's mental competency also determines whether or not
a plea satisfies the "mutuality of advantage" for both the state and the defendant. n485
According to Brady, the constitutionality of plea-bargaining arises out of the fact that
plea-bargaining has advantages for both parties involved, and the decision to plea is
based on a contractual agreement between the defendant and the state that is entered
knowingly and voluntarily. n486 In the Brady opinion the Supreme Court reasons that
this mutuality of advantage will likely entice defendants with considerable evidence
against them to plead guilty and only cases where there is "a substantial issue of the
defendant's guilt" will be litigated. n487 In sum, following the Supreme Court's
reasoning, a plea is constitutional because the defendant is making a voluntary,
reasonable, rational, intentional decision to procure a self-interested deal from an
equally situated prosecutor who is [*1164] balancing the interests of the victim, police
officers, the community, and the resource and litigation priorities of the county
attorney's office. The assumption that the Supreme Court of the United States makes
in regard to plea-bargaining as illustrated in Brady is that human decision-making is
based upon strict considerations of costs and benefits, and that the accused will make
the decision that benefits them the most. n488 Following utilitarian philosophical
theory, it is believed that all human beings seek to maximize pleasure and minimize
pain. n489 This "optimizing principle" is derived from early utilitarian economic
theories involving homo economicus, n490 and later rational choice theory. n491
These theories were crafted to explain human behavior with regard to the allocation of
143
scarce resources, and were later applied to other fields in the social sciences such as
political science, sociology and criminology, as well as the legal field.
More than half of jail inmates have a mental health problem
Critique, https://law-journals-books.vlex.com/vid/mental-competency-law-and-67177032
"56% of State prisoners, 45% of Federal prisoners, and 64% of jail inmates [had a
mental health problem]." Doris J. James & Lauren E. Glaze, Mental Health Problems of
Prison and Jail Inmates, Bureau of Justice Statistics 1 (2006).
B.
144
Neoliberalism Bad Advantage
Plea bargaining grounded in neoliberal bargaining and contract values
1170-5
B. Homo Economicus and Neoliberalism
Discussion of neoliberalism in a paper on plea-bargaining may seem superfluous, perhaps even
indulgent. However, it is our contention that the hegemonic influence of neoliberal values,
especially and most importantly the law's construction of the category homo economicus -
the reasonable, rational, self-interested individual - is what has permitted the Supreme
Court and members of Congress to perpetrate the myth that equitable contract is a
constitutionally permissible way to rationalize the accused's abdication of Fifth and Sixth
Amendment rights in plea contexts. This final section of our article seeks to locate subjects
within life-worlds that are constituted by an individualizing narrative premised on
neoliberal values. In 1898, Justice Harlan declared that it was unconstitutional for a defendant to
waive his or her right to a jury trial, n493 thereby emphasizing the early Court's concern over a)
the fact that rights are not the sole possession of individuals, but rather, they are cultural artifacts
that must be preserved in order to firmly realize freedom, and b) the inalienability of rights means
that they cannot be given away. n494 Plea jurisprudence changed in 1930 with the Supreme
Court's opinion in Patton v. United States, n495 when Justice Sutherland upset Justice Harlan's
reasoning by making rights waivers constitutional. n496 Plea jurisprudence lay dormant for forty
years until, in 1970, the Supreme Court attempted to rationalize the constitutionality and
inevitability of pleas in Brady v. United States. n497 Law and jurisprudence are cultural artifacts
that must be properly situated within temporal and spatial political, economic, and cultural
context. Philosophical articulation of homo economicus predates the twentieth-century, but it was
in the twentieth-century that classical liberalism consolidated its philosophical and political
narrative to have what we believe to be a significant impact on law and legal interpretation. n498
Homo economicus - economic man - of classical economic theory is said to possess the
following characteristics: "(1) maximizing (optimizing) behavior; (2) the cognitive ability to
exercise rational choice; and (3) individualistic behavior and independent tastes and
preferences." n499 A less charitable description of homo economicus might frame him as being
"cold and calculating, worries only about himself, and pursues whatever course brings him the
greatest material advantage." n500 "Homo economicus is a single-minded, wealth-maximizing
automaton, who does not take into account "morality, ethics, or other people.'" n501
Important for our purposes, the adoption of the ideological rationalization of human beings as
homo economicus leads to confronting juridical problems through application of cost-
145
benefit analysis, where solutions are framed as incentives and disincentives. n502 The
framing of homme juridique as homo economicus provides the jurisprudential legitimization
for plea-bargaining. n503 It does this by structuring agreements (contracts) between defendants
and prosecutors using cost-benefit analysis. n504 Defendant as homo economicus is imbued with
rational choice, and will predictably select the offer that maximizes his interests. n505 How was it
that homo economicus supplanted homme juridique with regard to application of Fifth and Sixth
Amendment rights and the U.S. Supreme Court's consitutionalization of plea bargains? Let us
consider just a few significant historical events that provide political, economic, and cultural
context. In 1947, Austrian born economist Friedrich Hayek invited thirty-six scholars to Mont
Pelerin, Switzerland to discuss the state of liberalism. n506 This meeting was an organized effort
to explore and assert the virtues of classical liberalism. n507 Hayek's most compelling and
influential publication was, The Road to Serfdom, a powerful critique of socialism. n508 And
while he held prestigious teaching positions at the London School of Economics, and the
University of Chicago, Hayek's early influence was limited to a relatively small group of
distinguished economists and scientists like Karl Popper, Frank H. Knight, Milton Friedman and
George Stigler. n509 Hayek was awarded the Nobel Prize for Economics in 1974. n510 By way
of contrast to Hayek's alarmist rhetoric and fetishism of market-based principles for guiding the
economy, Karl [*1167] Polanyi wrote in 1944 that, "to allow the market mechanism to be sole
director of the fate of human beings and their natural environment ... would result in the
demolition of society." n511 It seems that Polanyi assumed the role of Pangloss. n512
Neoliberalism's vulgate, its normative authority, drew from the assumption that economic market
forces would dictate political, economic, and cultural relations. n513 One of the explanations
given for the growth of neoliberal thought is the enthusiastic commitment of its followers to
promulgate their ideas. n514 The mid-twentieth century ideas generated by the classical liberal
economic school of thought percolated in universities and organizations like the Mont Pelerin
Society, and in the early 1970s started making their way into political prominence. n515 Just a
few months before being seated as a United States Supreme Court Justice, Lewis Powell wrote to
his friend Eugene Sydnor, Jr., Director of the U.S. Chamber of Commerce. n516 That letter,
which was leaked to the public after Powell was sworn in as Supreme Court Justice, is now
known as the Powell Memo. n517 Speaking on behalf of free market corporate interests, the
Memo is credited with inspiring the creation of the Cato Institute, the Heritage Foundation, the
Manhattan Institute, Citizens for a Sound Economy, and Accuracy in Academe. n518 Powell's
memo sounds a familiar Hayek-inspired alarm - the U.S. economic system is under attack from
"statism" and "socialism." n519 Powell names "college [*1168] campuses, the pulpit, the media,
the intellectual and literary journals, the arts and sciences, and ... politicians" as those "attackers"
of free enterprise. n520 The remedy for what is perceived by Powell as an urgent attack on
corporate interests is to generate "organization, in careful long-range planning and
implementation, in consistency of action over an indefinite period of years, in the scale of
financing available only through joint effort, and in the political power available only through
united action and national organizations." n521 Respect for corporate independence, while
laudable under ideal conditions, would lead to the diminution of corporate power. n522 The
answer was to consolidate corporate power and influence by sharing information, and their vast
financial resources to overwhelm the adversaries of capital growth. Universities were also viewed
as a significant problem, and locus of potential influence. Departments of Economics and
Philosophy must be staffed with classical liberal economists whose ideas would counter those
perceived by Powell as too "Marxist." Powell's recommendations included having the Chamber
146
of Commerce establish a stable of scholars who "believe in the system," create a staff of speakers
(including scholars), create a speaker's bureau that would coalesce politically and ideologically
like-minded scholars and Chamber advocates, create an organized review of textbooks (according
to Powell, labor unions and the Civil Rights movement had re-written textbooks to assure that
they were fair), establish equal time on college campuses for speakers favorable to classical
liberal ideas, and balancing faculties to assure the presence of classical liberal social scientists.
n523 Powell goes on to address the need to change the media and to more concertedly engage in
politics. n524 For our purposes, it's important to acknowledge Powell's entreaty to use corporate
authority to influence the Courts. Specifically, "under our constitutional system, especially with
an activist-minded Supreme Court, the judiciary may be the most important instrument for social,
economic and political change." n525 And, "this is a vast area of opportunity for the Chamber, if
it is willing to undertake the role of spokesman for American business and if, in turn, business is
willing to provide the funds." n526 Justice Lewis Powell, advocate for using the Supreme Court
as a vehicle for corporate political influence, was appointed by President Nixon in 1971, and was
sworn in on January 7, 1972. n527 He served on the bench until he retired in 1987. n528 C.
Neoliberalism As an ideologically hegemonic force, the Powell Memo signified a coming to
consciousness of the forces of economic dominance in the United States and across Europe and
Asia, and a clear indication that neoliberal ideas had begun to flower. The economic theory
that gave rise to neoliberalism assumes an essentialist rationality where "the economic world is a
pure and perfect order, implacably unrolling the logic of its predictable consequences ... ." n529
And where, "in the name of a narrow and strict conception of rationality as individual rationality,
it brackets the economic and social conditions of rational orientations and the economic and
social structures that are the condition of their application." n530 According to David Harvey,
neoliberalism is "a theory of political economic practices that proposes that human well-
being can best be advanced by liberating individual entrepreneurial freedoms and skills
within an institutional framework characterized by strong private property rights, free
markets, and free trade." n531 Most important for our purposes, neoliberalism
"emphasizes the significance of contractual relations in the marketplace." n532 An
essentialist and deeply ideological rationalism fetishizes the individual engaged in a contract,
thereby supplanting institutions and identities grounded in the collective. n533 Dialectical
juxtaposition constructs a new vulgate based upon the unity of opposites. For example,
"economic disinvestment by the state and reinforcement of its police and penal components,
deregulation of financial flows and relaxation of administrative controls on the employment
market, reduction of social protection and moralizing celebration of "individual responsibility.'"
n534 Neoliberal policies are Darwinistic, in that they privilege[] personal responsibility over
larger social forces, reinforce[] the gap between the rich and poor by redistributing wealth to the
most powerful and wealthy individuals and groups, and it foster[] a mode of public pedagogy that
privileges the entrepreneurial subject while encouraging a value system that promotes self-
interest, if not an unchecked selfishness. n535 One manifestation of neoliberalism is that
"social problems are increasingly criminalized while social protections are either eliminated
or fatally weakened." n536 The concept of freedom and liberty as defined by neoliberalism is a
lonely one. That free thinking, freely acting, reasonable, rational person under the law confronts
the world as a solitary being engaged in a "morality of personal, but not social, responsibility."
n537 And most important as it pertains to the ideological rationale for plea bargaining, "we alone
become responsible for the problems we confront when we can no longer conceive how larger
forces control or constrain our choices and the lives we are destined to lead." n538 Neoliberal
147
ideology has as its centerpiece an interest in "shaping identities, desires, and modes of
subjectivity in accordance with market values, needs, and relations." n539 A hallmark of the most
recent incarnation of the Belle Epoque or Gilded Age n540 is a concomitant growth of what
Giroux calls the "politics of disposability." n541 Neoliberal marginalization of undesirables by
race/ethnicity, class, gender, sexual orientation, immigration status, and intellectual ability
manifests in orchestrated policies designed to punish. n542 Investigative journalist, Matt Taibbi,
artfully exposes the influence of neoliberal policies on decisions to punish those who have
committed crimes. n543 On December 11, 2012 the Hong Kong and Shanghai Banking
Corporation, or HSBC, received the largest fine in banking history - $ 1.92 billion - and they had
to apologize for their misdeeds. n544 What had employees of HSBC done to generate such an
extreme penalty? The bank admitted to laundering billions of dollars for drug cartels in Mexico
and Colombia, washing money for terrorist-connected organizations in the Middle East, allowing
rogue states under formal sanctions by the U.S. government to move money freely by the tens of
billions through its American subsidiary, letting Russian mobsters wash money on a grand scale
using a see-no-evil traveler's checks program, and helping tax cheats and other crooks from
Miami to Los Angeles to Peru hide hundreds of millions of dollars in nearly anonymous "bearer
share" accounts. n545 HSBC admitted to laundering up to $ 7 billion in drug cartel money, yet no
one went to prison. n546 HSBC agreed to a $ 1.92 billion settlement with the U.S. Department of
Justice. n547 How could this have happened? The Department of Justice came to its decision to
charge HSBC civilly based upon the substance of a document generated by former Assistant U.S.
Attorney General, Eric Holder. n548 That document has come to be known as the Holder Memo.
n549 Specifically, before charging corporations government attorneys must consider the
collateral consequences that may befall the corporation, its employees, and the economy more
generally. n550 In 2012 at a press conference held to explain the DOJ's decision to charge HSBC
civilly and not criminally, now former U.S. Attorney General Holder indicated that before
bringing charges the DOJ should "reach out to experts outside of the Justice Department to talk
about what are the consequences of actions that we might take ... [and] what would be the impact
of those actions if we wanted to make a particular prosecutive [sic] decision or [*1172]
determination with regard to a particular institution." n551 The Attorney General publicly
admitted that the DOJ would seek input from corporations before prosecuting HSBC. n552 By
way of juxtaposition, Taibbi documents a story unfolding in the shadows of Wall Street in the
Manhattan Public Defender's office. On August 9th, 2012, Tory Marone was stopped by police as
part of New York City's now unconstitutional stop and frisk program. n553 Marone was stopped
for being homeless and looking stoned. n554 When told by officers to empty his pockets, Marone
revealed half a joint. n555 He was arrested and charged for ""knowingly or unlawfully possessing
marijuana and such is burning or open in public view.'" n556 Private possession of less than
twenty-five grams of marijuana was made legal in New York City in 1977. n557 If Marone had
kept his half-smoked joint in his pocket, and thereby private, he would not have been in violation
of the law. n558 But when officers ordered him to empty his pockets and he complied, the half-
smoked joint was then no longer "private," as it was publicly exposed, so he was in violation of
the law and could be arrested. n559 Marone was convicted and ordered to pay a bail fine of $
1,500.00 for resisting arrest n560 and $ 1,000.00 for possessing marijuana. n561 He was then
ordered to spend forty days at Rikers Island prison. n562 The politics of disposability. How else
can the juxtaposition of these two stories - the tip of the iceberg - be explained except in terms of
disposability and marginalization? At what point does the U.S. Attorney General find it necessary
to consult with run-of-the-mill defendants to discern "collateral consequences" before charging
148
them? How is it just that HSBC engaged in drug money laundering, among other violations of the
law, and no one was sent to prison? And yet, possession of a half a joint can land you in Rikers.
Taibbi is onto something when he acknowledges that a pernicious and pervasive ideological shift
is afoot, one that demonstrates "a profound hatred of the weak and the poor, and a corresponding
groveling terror before the rich and successful ... ." n563 The result is consistent with neoliberal
manifestations of economic Darwinism, "in which the rule of law has slowly been replaced by
giant idiosyncratic bureaucracies that are designed to criminalize failure, poverty, and weakness
on the one hand, and to immunize strength, wealth, and success on the other." n564 Part and
parcel of a neoliberal model of social control is "undermining civil liberties, criminalizing a range
of social behaviors related to concrete social problems, and intensifying the legacy of Jim Crow
against poor people of color." n565 What should be clear from the preceding examples is that
neoliberalism is far more than a form of economic rationality: it is also a form of political
rationality. n566 This is important because as a mechanism of "cultural imperialism," neoliberal
rationality influencing all facets of human life manifests as symbolic violence. n567 Here, "the
state itself must construct and construe itself in market terms, as well as develop policies and
promulgate a political culture that figures citizens exhaustively as rational economic actors in
every sphere of life." n568 In addition to the ideological constitution of citizens as possessing
"moral autonomy," "neoliberal political rationality produces governance criteria along the same
lines, that is, criteria of productivity and profitability, with the consequence that governance talk
increasingly becomes market-speak, businesspersons replace lawyers as the governing class in
liberal democracies, and business norms replace juridical principles." n569 How does the
Supreme Court rationalize usurpation of constitutional rights protections for defendants facing
felony conviction via plea-bargaining? Avoid application of criminal justice [*1174] and shift the
focus to contract law. How is it that doing so garners legal and scholarly legitimization? Because
the hegemonic influence of neoliberalism makes what to most would appear to be juridical sleight
of hand appear perfectly reasonable. As Brown makes clear: Civic and legal principles securing
the political (as opposed to private) autonomy of citizens, such as those enumerated in the
First Amendment of the U.S. Constitution [and, we contend, the Fifth and Sixth
Amendments], have no place in a neoliberal schema, which means that neoliberal political
rationality features no intrinsic commitment to political liberty. n570 Here, law becomes
instrumentalized, "producing the conditions for [law's] routine suspension or abrogation,
and paving ground for ... sovereignty in the form of a permanent "state of exception.'" n571
Defendants confronting preparation for trial may invoke their Fifth and Sixth Amendment
rights. n572 But culturally hegemonic neoliberal ideology provides a juridical
rationalization for the abrogation of constitutionally protected rights when prosecutors,
defense attorneys, and judges perceive plea-bargaining as the most efficient way to dispose of
ever-increasing caseloads. n573 Defendants confront prosecutors as "free agents"
negotiating a contract. These defendants are perceived to be synonymous with homo
economicus and are politically positioned as such. They are in essence "free" to choose a
proffered plea offer or risk their fortune at trial. n574 In this way, a "state of exception" is
imposed to generate a market-rationalized use-value for formal rights protections. n575 This is a
type of power relation that Foucault referred to as "strategic games between liberties." n576
Lemke interprets strategic games as "structuring the possible field of action of others." n577 This
could mean "empowering" individuals as positioned against the interests of the state, with the
capacity for "free" decision-making. What [*1175] makes this form of political rationality and
governmentality so important is "how it functions as a "politics of truth', [sic] producing new
149
forms of knowledge, inventing new notions and concepts that contribute to the "government' of
new domains of regulation and intervention." n578 Normative relinquishing of political rights for
defendants confronted with plea bargains under a neoliberal jurisprudence gains its ubiquity
through articulation of a "politics of truth" (caseload and resource pressures), thereby rationally
adjudicating heavy caseloads in the name of more efficient governmentality. As a technology of
control, governmentality as signified by neoliberalism "entails shifting the responsibility for
social risks such as illness, unemployment, poverty, [cognitive decision making and
neuropsychological damage,] etc.[,] and for life in society into the domain for which the
individual is responsible and transforming it into a problem of "self-care'." n579 Reasonable,
rational individuals are confronted with the capacity to discern from among competing options
the proper path. The neoliberal ideology assumes that all action is the product of free will, and as
such, individuals must confront the consequences of their actions alone. n580 Neoliberal
ideology ignores the constitution of the self as influenced by the confluence of a
neurophenomenology that is politically, economically, and culturally embedded. It has no
place for explanations for human behavior that might fall outside the bounds of what would
seem to be in accordance with a subject's self-interest.
Plea agreements are based on civil contract law
C. Analyzing Written Plea Agreements and Their Validity: Contractual Principles

When a defendant pleads guilty, the terms are generally also laid out in a written plea
agreement between the prosecution and the defendant. These written agreements are
evaluated pursuant to civil contract law, despite arising in the criminal context. n70 "A
contract is a promise or a set of promises for the breach of which the law gives a remedy, or the
performance of which the law in some way recognizes as a duty." n71 Therefore the law
governing contracts is particularly apposite to plea agreements: such agreements set forth the
promises the government makes to a defendant and the promises the defendant makes in return.
n72 The Supreme Court has maintained that "plea agreements must be construed in light of the
rights and obligations created by the Constitution." n73 Defendants and prosecutors, like the
parties to a standard executory contract, do not necessarily trade entitlements; rather, they
exchange the risk that future events or circumstances will cause either party to regret concluding
the earlier bargain. n74 The plea bargaining process reassigns the risks that each party must
consider. n75 Prior to plea bargaining, defendants assume the risk inherent in going to trial--
conviction with the maximum sentence imposed. The government, on the other hand, bears a
reciprocal risk that the expenditure of limited resources on a trial will nevertheless result in an
150
acquittal. n76 Once the parties reach a plea agreement, however, there is an inversion of risk.
Now the defendant risks a favorable result at trial--an acquittal or a lighter sentence--while the
prosecutor risks having foregone the possibility of procuring a more severe sentence at trial. n77
Robert E. Scott and William J. Stuntz, two law professors from the University of Virginia, argue
that participants in a plea bargain may also realize gains that have social value. n78 Plea
bargaining, they contend, "provides a means by which prosecutors can obtain a larger net return
from criminal convictions, holding resources constant. Criminal defendants, as a group, are able
to reduce the risk of the imposition of maximum sanctions." n79 These scholars maintain that
"the existence of entitlements implies the right to exploit those entitlements fully, which in turn
implies the right to trade the entitlement or any of its associated risks." n80 Viewing plea
bargaining as a systematic approach, rather than simply analyzing each individual defendant's
case, may reveal a more balanced view of the institution. Overall, society may thus deem the
criminal justice system's reliance on the negotiation process more legitimate and "normatively
acceptable." n81 Arguably, contract law "is broader in scope and offers greater protection than
the Constitution." n82 In fact, the defendantwaives numerous constitutional guarantees in order to
plead guilty. n83 "[T]he Constitution is only effective in cases where the prosecutor reneges after
the defendant enters a plea[;] contract law applies from the much earlier point where the parties
actually reach an agreement." n84 Therefore, contract law provides the most suitable and flexible
standards for evaluating and enforcing plea agreements. n85 1. Contracts, Generally According to
the Restatement (Second) of Contracts, a contract "is a promise or a set of promises for the breach
of which the law gives a remedy, or the performance of which the law in some way recognizes as
a duty." n86 If a contract term, provision, or entire agreement is ambiguous or subject to multiple
reasonable constructions, "that meaning is generally preferred which operates against the party
who supplies the words or from whom a writing otherwise proceeds." n87 In the case of a plea
agreement, the prosecution will generally draft the document, and therefore any ambiguity should
be construed against the government. The comment following section 206 of the Restatement
(Second) of Contracts provides the rationale for so construing contractual terms: "Where one
party chooses the terms of a contract, he is likely to provide more carefully for the protection of
his own interests than for those of the other party. He is also more likely than the other party to
have reason to know of uncertainties of meaning." n88 Critically, the rule is invoked in situations
paralleling those found in the criminal justice system--those in which the drafting party (i.e., the
government) has the stronger bargaining position and in cases of standardized contracts. n89 2.
Breach of Contract: When Is a Breach Material? A plea agreement, like many contracts, obligates
both parties to perform. The Supreme Court has held that "when a defendant is induced to plea
bargain chiefly because of a prosecutor's promises, such promises must be fulfilled." n90 On the
other hand, "if a defendant materially breaches the terms of a plea bargain," the government is
released from its promises. n91 A contract is deemed to be breached when there is a "[v]iolation
of a contractual obligation by failing to perform one's own promise, by repudiating it, or by
interfering with another party's performance." n92 Every breach gives rise to some form of
remedy in the other party. n93 A breach may be active or passive, anticipatory or continuing,
constructive, partial, or material, or even efficient. n94 In the context of plea bargaining, the most
important type of breach is a material breach. A material breach has been defined as one that is
"significant enough to permit the aggrieved party to elect to treat the breach as total (rather than
partial), thus excusing that party from further performance and affording it the right to sue for
damages." n95 The Restatement (Second) of Contracts lists the following factors a court may
consider in determining the materiality of an alleged breach: (a) the extent to which the injured
151
party will be deprived of the benefit which he reasonably expected; (b) the extent to which the
injured party can be adequately compensated for the part of that benefit of which he will be
deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer
forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his
failure, taking account of all the circumstances including any reasonable assurances; [and] (e) the
extent to which the behavior of the party failing to perform or to offer to perform comports with
standards of good faith and fair dealing. n96 Materiality is so important in the plea agreement
context because a material breach of the plea agreement by either party may have significant
consequences. For example, if a defendant agrees to cooperate by providing testimony against
coconspirators, but refuses to take the stand when he or she is supposed to testify, that will often
be treated as a material breach of the agreement. If so, the government will likely be able to
revoke the deal, avoid double jeopardy concerns, and pursue further charges or harsher penalties
for the crimes to which the defendant has already pleaded guilty. On the other hand, the converse
would likely be true as well. If a defendant agrees to plead guilty and cooperates in exchange for
a reduced sentence, but the government fails to suggest such a sentence, the government will have
breached the agreement. These breaches are deemed grave enough that they deprive one party of
the benefit of the bargain. Following a breach, the court must determine the appropriate remedy
for the aggrieved party.
152
Imagine that you have been arrested by federal law enforcement officers and charged with
felony criminal offenses--perhaps drug crimes and related conspiracy charges. Assume these
crimes carry lengthy sentences of incarceration, even life imprisonment. Pending trial, you
remain at a federal detention center because you cannot afford bail. An Assistant U.S. Attorney
arranges a proffer meeting with you and your court-appointed attorney. If you agree to plead
guilty to at least one of the crimes charged, cooperate with the government, and provide
information that leads to the arrest and successful prosecution of others, the government will
suggest a more lenient sentence to the court. You understand that you will be forfeiting a jury trial
and its accompanying rights, but there is one other important caveat: you must also waive your
right to appeal. Your attorney explains that this means you cannot challenge any aspect of your
plea bargain or sentence, except as explicitly provided for in the agreement. In effect, with the
exception of a few enumerated circumstances, n1 the deal is final. Maybe this makes you
nervous--after all, errors might occur during the computation of your sentence--but the
prosecution is adamant about the inclusion of the appellate waiver provision. You cannot risk a
trial, a conviction, and a harsher sentence, so you accept. Fast forward a few months to
sentencing: you have held up your end of the deal, and the prosecution is satisfied with your
cooperation. As promised, the government suggests a more lenient sentence to the court. In
153
calculating your sentence, however, the court arrives at a longer term of imprisonment than you
anticipated. You are certain that this sentence deprives you of [the full benefit of your bargain, so
you appeal, despite your promise not to do so. The appellate court determines that your valid
waiver of your appeal rights bars the action, and therefore, the court cannot reach the merits of
your argument. Instead of dismissing your appeal--as is the general practice--the court remands
your case for resentencing, which would allow the government to seek a higher sentence. Such
was the case for Christopher Erwin, a man who pleaded guilty to conspiracy to distribute and
possession with intent to distribute oxycodone, and waived his right to appeal. But when the
sentencing judge computed his sentence differently than Erwin expected, n2 he appealed. The
Third Circuit held that his appeal was barred by a valid waiver, and therefore when Erwin was
resentenced, the government could withdraw its motion for a more lenient sentence. n3 This case
has opened the door for a similar fate to befall other criminal defendants who enter into plea
agreements with appellate waiver provisions. n4 Federal prosecutors have regularly included
appellate waiver provisions in written plea agreements since 1990, when the Fourth Circuit
first upheld their use in United States v. Wiggins. n5 In that case, the court noted that a defendant
may waive numerous constitutional rights--the right to a jury trial, the right to confront witnesses,
and the privilege against self-incrimination--when negotiating a voluntary plea agreement. n6
From this well-settled rule, the court extrapolated that a defendant may also waive, in a valid plea
agreement, the statutory right to appeal. n7 The court ultimately held that "a defendant who
pleads guilty, and expressly waives the statutory right to raise objections [*1239] to a sentence,
may not then seek to appeal the very sentence which itself was part of the agreement." n8 Since
Wiggins, appellate waivers have become entrenched in federal criminal practice. Critics
have argued that waivers are "unethical and . . . further stack[] the deck in favor of the
government by putting defendants at a disadvantage." n9 In essence, these waivers
effectively preclude judicial review of plea bargains, which dispose of most criminal cases.
n10 Federal prosecutors, on the other hand, defend these waivers as promoting judicial economy
and preventing frivolous appeals. n11 By confining the scope of a defendant's right to appeal, the
case is disposed of with a greater air of finality, allowing the government to focus its efforts on
other open cases. Although the federal government continues to sanction appellate waiver
provisions generally, the U.S. Attorney General has issued a new departmental policy regarding
waivers of claims of ineffectiveness of counsel on appeal. n12 On October 14, 2014, Deputy
Attorney General James M. Cole distributed a memorandum to all federal prosecutors, advising
that they should no longer include provisions in plea agreements that ask criminal defendants to
waive claims of ineffectiveness of counsel, regardless of when the claims are raised. n13
Although this new policy preserves a defendant's right to appeal a conviction if his trial counsel
(or appellate counsel in some cases) is ineffective, prosecutors remain "free to request waivers of
appeal and of post-conviction remedies to the full extent permitted by law as a component of plea
discussions and agreements." n14 Thus, criminal defendants will still likely be routinely asked to
forfeit their right to appeal when executing a written plea agreement. n15 It is well established
that plea agreements--including those with appellate waiver provisions--are analyzed under the
standards of contract law. n16 When the government breaches a plea agreement, federal courts
have considered specific performance n17 to be an appropriate remedy. n18 Some courts have
also enforced plea agreements where the defendant was the breaching party, n19 although not
when the defendant's breach consisted of appealing despite a waiver provision in the defendant's
plea agreement. Generally, appellate courts "retain jurisdiction over an appeal by a defendant who
has signed an appellate-waiver"; a court will not, however, reach the merits of such a case if a
154
defendant "knowingly and voluntarily waived her right to appeal." n20 If the appellate court
deems the waiver valid, the appeal is dismissed. n21 This note considers the applicability of the
specific performance remedy for a defendant's breach of an unconditional plea agreement, where
the breach consists only of filing an appeal theoretically precluded by a waiver provision. This
note explores constitutional principles, contractual principles, and public policy
implications in arguing that the Court of Appeals for the Third Circuit has abandoned its
role as an arbiter of justice and fairness in order to conserve judicial and prosecutorial
resources. Specifically, court-sanctioned threats of withdrawn leniency, an enhanced
sentence, further criminal charges, or a return to the status quo ante n22 may insulate,
preclude the review of, and perpetuate injustice or illegality in the plea bargaining process.
Criminal defendants with arguably meritorious claims of error on appeal should not have
to forego an appeal for fear that the court will not only disagree with them, but will also
subject them to enhanced sentences or further charges. Considering the panoply of rights
criminal defendants already waive in order to plead guilty, it is essential that defendants at
least retain the right to the review of the voluntariness of their decision to waive the right to
appeal. Part I of this note discusses the plea bargaining process itself, the right to appeal and the
waiver thereof, the relevant contractual principles that govern the interpretation of plea
agreements, and the remedies available upon a breach of a plea agreement. Part II discusses
United States v. Erwin, focusing on the Third Circuit's holding that specific performance is
available as a remedy for the government when a criminal defendant breaches a plea agreement
by appealing despite waiving the right to do so. n23 Part III evaluates and critiques the Third
Circuit's holding in Erwin and suggests alternative remedies. Providing the government with the
extraordinary remedy of specific performance will effectively preclude review of plea agreements
and the validity of appellate waivers, even in the absence of a cross-appeal or a government
motion to enforce the appeal waiver. The government should be prohibited from moving for
specific performance if it does not first move to dismiss the appeal based on a valid waiver. The
cross-appeal rule dictates that the government may only raise an issue when it has been aggrieved
by a final judgment. This note concludes that in Erwin, the government was not aggrieved by a
final judgment and therefore should not have been able to seek specific performance. The Third
Circuit's erroneous approach in Erwin should not govern how future courts address breaches of
appellate waiver provisions; rather, courts should only order the specific enforcement of such
provisions in extraordinary circumstances.
155
Due Process Good
n212 See Due Process Clause, BLACK'S LAW DICTIONARY (10th ed. 2014); Rosalie
Berger Levinson, Reining in Abuses of Executive Power Through Substantive Due
Process, 60 FLA. L. REV. 519, 519 (2008) ("The touchstone of due process is protection of
the individual against arbitrary action of government." (quoting Cty. of Sacramento v.
Lewis, 523 U.S. 833, 845 (1998))).
No check on racial bias in plea bargaining
Michelle Alexander, civil rights lawyer and legal scholar, 2010, The New Jim Crow, Kindle edition
Page number at end of card
Immunizing prosecutors from claims of racial bias and failing to impose any meaningful check on
the exercise of their discretion in charging, plea bargaining, transferring cases, and sentencing
has created an environment in which conscious and unconscious biases are allowed toflourish.
Numerous studies have shown that prosecutors interpret and respond to identical criminal
activity differently based on the race of the offender.63 One widely cited study was conducted
by the San Jose Mercury News. The study reviewed 700,000 criminal cases that were matched
by crime and criminal history of the defendant. The analysis revealed that similarly situated
whites were far more successful than African Americans and Latinos in the plea bargaining
process; in fact, “at virtually every stage of pretrial negotiation, whites are more successful than
nonwhites.”
156
Racism Advantage – Prior Arrests Link
Using prior arrests in plea bargains is wrong because prior arrest decisions are
often racist
Luka & Lawson, 2016, Cardozo Law Review, February, The Underbelly Of The Beast:
Misdemeanor Practice In The Era Of Broken Windows And Saturation Policing: How Bad
Arrests Lead to Bad Prosecution: Exploring the Impact of Prior Arrests on Plea Bargaining,
http://www.cardozolawreview.com/content/37-3/KUTATELADZE.LAWSON.37.3.pdf, Dr.
Kutateladze is the research director and Dr. Lawson is a senior research associate at the Institute
for State and Local Governance. Requests for additional information about this study should be
directed to Besiki L. Kutateladze (Institute for State and Local Governance, City University of
New York, p. 973-6
Arrests and arrest records play an important role in the criminal justice system. Police agencies customarily use suspects' prior record
for investigative purposes, and courts use this information to set bail. Yet many arrest practices, and particularly stop-and-frisk, have
long been criticized for disproportionately targeting young black and Latino men, and for their overall negative effect on communities
of color. Not surprisingly then, arrest practices have received much attention, including among legal scholars and social scientists.
However, what effect a prior arrest record has on other decision points, including prosecutorial decision making, is relatively
unknown. In particular, we have a limited understanding about the relationship between prior arrest and plea bargaining. In this
Article, we present three arguments - legal, moral, and cost arguments - to demonstrate the negative consequences of arrests and arrest
records. We use a unique empirical study of the relationship between prior arrests and plea offers in the New York County District
Attorney's Office, to support two propositions: (a) arrests should be viewed as a last resort to be used whenever issuing warnings,
prosecutors' offices should not use
citations, or summonses would be inadequate safeguards of public safety; and (b)
prior arrest as a factor by default when making plea offer determinations unless they are
able to show that using prior conviction record alone would not be sufficient to serve the
purposes of justice, safety, and fairness . We argue that using nonconviction prior arrest in
determining punishment in subsequent nonrelated cases is contrary to the principles of the
presumption of innocence, race-neutral decision making, and wise criminal justice
expenditure. While arguments about how arrests, especially cyclical arrests of young men of color, can lead to poor criminal
justice and social outcomes are frequently made, n1 the relationship between arrests and plea bargaining is less obvious and
inadequately researched. n2 Arrest
is a common response to the majority of crimes, including for
first-time nonviolent offenses, a practice that many would argue is responsible for both a
high - although declining - incarceration rate and the overrepresentation of minorities in
jails and prisons. n3 A quick look at the arrest history over the past decade shows that misdemeanor arrests in New York City
(NYC) are on the rise. n4 Between 2005 and 2014, although felony arrests decreased by about 5%, misdemeanor arrests increased by
over 13%, with the highest increase occurring with respect to property misdemeanor offenses (almost 46%). n5 The New York Police
Department's (NYPD) stop-and-frisk practice has long been questioned in terms of its actual impact on public safety, especially as
compared to its negative collateral consequences to the black and Latino individuals and communities particularly affected by this
practice. n6 A recent report by the New York State Attorney General showed that close to half of all stop-and-frisk arrests did not
result in a conviction, and just one in fifty arrests led to a conviction for possession of a weapon or for perpetration of a violent crime.
n7 Beginning in 2014, the NYPD enacted significant changes to cut down on stop-and-frisk. For example, as a result of the federal
class action lawsuit, Floyd v. City of New York, officers are now prohibited from conducting stops solely based on "furtive
movements" or mere presence in a high crime area. n8 Officers are also required to specifically describe the suspicious nature of the
"furtive movements." n9 Furthermore, because law enforcement arrest practices with respect to drug use have long been viewed as
discriminatory towards people of color, n10 the possession of small amounts of marijuana can no longer trigger arrests, but are instead
punishable by a fine. n11 Although arrest practices have received much attention, including among media, legal scholars, and social
scientists, n12 relatively little is known about plea bargaining and the relationship between prior arrest records and plea bargaining. It
is well known that plea bargaining is the driving force behind the justice system. n13 There are
numerous estimates of how often cases are disposed of through guilty pleas, but data from the Bureau of Justice Statistics, referring to
both federally and locally disposed cases, puts this number at ninety-five percent. n14 Yet, research on plea bargaining is lacking,
157
largely due to the absence of or the lack of access to data. n15 Unlike some other discretionary decisions, such as case acceptance for
prosecution or sentencing, which are likely to be captured more systematically, plea offers are made at various points between
arraignment and final disposition and prosecutors do not typically make systematic notes or entries into the data system. n16 A 2012
Vera Institute of Justice review showed that comparatively few studies focused on plea bargaining and that most studies looked into
the initial case screening and sentencing. n17 As a result, plea bargaining and the factors that contribute to specific plea offers remain
a deeply misunderstood part of the justice system, despite being perhaps the most important aspect. An arrest is not only a factor in the
disposition of the case for which the arrest was made, but it may also play a significant role in all subsequent criminal cases involving
the same defendant. For example, using prior arrest records in sentencing is a common practice. States that have adopted determinate
sentencing statutes have long used prior arrest record as a factor for the determination of a sentence. n18 But not all priors are the
same because some arrests result in conviction and others do not (what we call a "nonconviction prior arrest"). The former type can be
used as a factor for subsequent sentencing decisions, while the latter should be used more sparingly in a manner that takes into account
the type of offense (e.g., domestic violence or not; violent or not) and defendants' characteristics (e.g., age of a defendant and the
length of time since previous arrests). Furthermore, prior arrests may be a factor in other types of decisions, including pretrial
detention and charge offers. n19 In this Article, we present three arguments - legal, moral, and cost arguments - to demonstrate the
negative short-term and long-term consequences of arrests and arrest records, and to argue
that using nonconviction prior arrest in determining punishment in subsequent nonrelated
cases is contrary to the principles of the presumption of innocence, race-neutral decision
making, and wise criminal justice expenditure . In the three Parts that follow, we review existing case law,
provide data and statistical analyses of criminal cases recently disposed of in New York County, and examine the literature on the
costs of arrest and detention to support our argument. I. Legal Argument It is well known among researchers and criminal justice
practitioners that arrest records play an important role in law enforcement and that police agencies customarily use suspects' prior
records for investigative purposes. n20 This use seems reasonable in a number of scenarios. For example, if a defendant has multiple
prior domestic violence arrests, the police and courts may use this information to make a new domestic violence arrest, hold a
defendant in pretrial detention, and to predict future behavior. n21 However, it is not perfectly clear how prior arrest information is
used at other points in the justice system, and especially in prosecutorial decision making. n22 Legislators have placed very few, if
any, meaningful limitations on access to arrest records, thereby encouraging the use of these records in the interest of law enforcement
and public safety. n23 The lack of oversight is further exacerbated by the failure of statutory and case law to fill this gap, as described
below. The Federal Sentencing Guidelines explicitly prohibit using a prior arrest record itself for "purposes of an upward departure" in
sentencing; n24 however, according to the D.C. Circuit, this means that a defendant's arrest history can be considered when imposing
a sentence within or below the applicable range. n25 Moreover, since 2005, these guidelines have only been viewed as advisory, even
for an upward departure. n26 New York State laws do not specifically address this issue. Although New York Penal Law on
sentencing makes references to prior conviction, n27 it says nothing about using prior arrest in the determination of sentences. The
case law is richer, but still ambiguous. The admissibility of evidence of a defendant's prior uncharged crimes was first addressed in
1901, n28 when the New York Court of Appeals established that, generally speaking, evidence of prior uncharged crimes - that is, any
crime not alleged in the current indictment - is not admissible, although prosecutors can still try to introduce such evidence by
requesting a Molineux hearing. n29 This ruling has established the important principle that one cannot be presumed guilty of a
particular crime simply due to the possibility that he may have committed similar crimes in the past. n30 More than seventy years
later, in People v. Sandoval, n31 the Court of Appeals provided a few guidelines to allow the prosecution to impeach the defendant on
specific "prior ... criminal, vicious or immoral acts." n32 The court ruling, however, fell short of articulating the difference between
prior arrest and prior conviction, and whether these two forms of prior record should be distinguished in determining how they may be
permissibly used against a defendant as impeachment evidence. Furthermore, these cases refer to uncharged crimes, making it unclear
how these rules would apply to arrests which, despite leading to formal charges, did not result in conviction. The cases that do address
the use of a defendant's prior arrest focus on sentencing decisions, but even there the impact of prior arrest is not clear. A Fifth Circuit
case held that "an arrest, without more, is quite consistent with innocence," n33 and that it is an error for a district court to consider a
defendant's bare arrest record at sentencing. n34 The Seventh Circuit has historically taken a similar position. In United States v.
Guajardo-Martinez, n35 the court said that "a sentencing court may not rely on the prior arrest record itself in deciding on a sentence."
n36 Most recently, however, the same court held, in United States v. Drain, n37 "that a substantial history of arrests, especially if they
are similar to the offense of conviction, can be a reliable indicator of a pattern of criminality, suggesting a recidivism risk, and may be
considered" as a factor during the imposition of a sentence. n38 Drain had "adult convictions for possessing cocaine and marijuana,
carrying a gun, and resisting law enforcement" and "juvenile adjudications for battery. Thirteen of the unadjudicated arrests were for
those very crimes." n39 Considering the scope of arrest history in this case, the court said that "the number of prior arrests, and/or the
similarity of prior charges to the offense of conviction, becomes so overwhelming and suggestive of actual guilt that they become
exceedingly difficult to ignore." n40 However, how many prior arrests are needed for the record to become a factor, n41 how similar
those arrest charges should be to the present case, n42 and how big of a factor prior arrest should be in sentencing are simply unknown
and will likely be determined on a case-by-case basis. The ambiguity of case law raises questions about whether the presumption of
innocence can be applied to plea bargaining, which is de facto how most sentences are determined due to the prevalence of plea
dispositions. n43 Simply put, the presumption of innocence establishes that a defendant should be considered innocent until he can be
proven guilty. Therefore, we argue that using prior arrest(s), especially one(s) that did not result in conviction, in determining
sentences in subsequent cases, is in many cases unreasonable and potentially prejudicial, especially in light of mounting evidence of
how existing [*980] arrest practices unfairly target racial and ethnic minorities, the homeless, individuals with mental illness, young
people, and other vulnerable populations. In United States v. Lopez-Hernandez, the defendant argued that "the judge couldn't allow
any of the arrests that did not result in convictions to influence the sentence - that due process of law required him to find by a
158
preponderance of the evidence that the defendant had actually committed the crimes for which he had been arrested." n44 In essence,
the defendant was claiming his right to be presumed innocent for past nonconviction arrests. Disregarding the presumption of
innocence, the Seventh Circuit disagreed, claiming that it was the defendant's burden to challenge the accuracy of any arrest report.
n45 As the circuit judge wrote: In light of the defendant's failure to challenge the accuracy of anything in his lengthy arrest record, the
judge was entitled to assume that the 41 arrests considered as a whole, when coupled with the defendant's five convictions, gave a
more accurate picture of the likelihood of recidivism than the convictions and arrest summaries alone and justified a sentence at the
top of the guidelines range. n46 This is a dangerous precedent for a number of reasons, but especially because of its implications for
racial and ethnic fairness in the justice system, as described in the next Part.
159
Racism – General Links
Racism imbedded in pleas – Blacks and Hispanics more likely to be arrested,

detained, prosecuted, and to receive a custodial plea
Luka & Lawson, 2016, Cardozo Law Review, February, The Underbelly Of The Beast:
Misdemeanor Practice In The Era Of Broken Windows And Saturation Policing: How Bad
Arrests Lead to Bad Prosecution: Exploring the Impact of Prior Arrests on Plea Bargaining,
http://www.cardozolawreview.com/content/37-3/KUTATELADZE.LAWSON.37.3.pdf, Dr.
Kutateladze is the research director and Dr. Lawson is a senior research associate at the Institute
for State and Local Governance. Requests for additional information about this study should be
directed to Besiki L. Kutateladze (Institute for State and Local Governance, City University of
New York, p. 980-5
It is a well-established fact that racial and ethnic disparities in arrest and incarceration are
astronomical. Despite being only 13% of the national population, n48 blacks comprise 28%
of people arrested n49 and 35% of the country's jail population. n50 In New York City, out of 75,528
arrests made in 2014, the arrest rates for Asians and whites per 100,000 residents were 371 and 397, respectively, as compared to the
rate of 1,001 for Hispanics and 1,792 for blacks. n51 The city jail population in 2012 contained 1% Asian and 7% white inmates, but
33% Hispanic and 57% black inmates. n52 While the police are under constant scrutiny for their
contribution to racial disparities in the justice system, n53 judicial actors - prosecutors,
judges, and defense counsel - all play roles in this process as well. Our recent research from New York
County showed that minority defendants face additional disadvantages in prosecution and sentencing. n54 Based on a sample
of 185,275 diverse criminal cases disposed of by the New York County District Attorney's Office (DANY) in 2010 and
2011, significant disparities were found in case dismissals, pretrial detention, plea bargaining, and sentencing.
n55 More specifically, compared to similarly situated white defendants, black and Latino
defendants were more likely to be detained, to receive a custodial plea offer, and to be
incarcerated; however, they were also more likely to benefit from case dismissals. n56 In terms of offense categories, blacks and
Latinos were particularly likely to be held in pretrial detention for misdemeanor person offenses, followed by misdemeanor drug
offenses. n57 Disparities in custodial sentence offers (as part of the plea-bargaining process) and ultimate sentences imposed were
most pronounced for drug offenses, where blacks and Latinos received especially punitive outcomes. n58 On the other hand, blacks
and Latinos were also most likely to have their cases dismissed for misdemeanor drug offenses. n59 Finally, Asian defendants
appeared to have the most favorable outcomes across all discretionary points, as they were less likely to be detained, to receive
custodial offers, and to be incarcerated relative to white defendants. n60 Asian defendants received particularly favorable outcomes
for misdemeanor property offenses. n61 A. A Review of Prior Record of a Sample of New York City Defendants One of the goals of
the research described herein was to look into the relationship between prior record and plea bargaining, and to investigate whether
any inferences regarding racial and ethnic differences can be drawn from this relationship. To do so, we used a unique dataset
consisting of 213,547 cases disposed of by DANY in 2010 and 2011. n62 Defendant race was unknown in 2,491 cases, leaving us
with a final sample of 211,056 cases. Using these data, we examined multiple forms of prior record and identified marked variations
by defendants' race and ethnicity. Overall, a greater percentage of black defendants had prior arrests, felony arrests, convictions,
felony convictions, prison sentences, jail sentences, and noncustodial sentences when compared to other racial groups. This was true
for all black defendants, whether they were currently charged with felonies, misdemeanors, or violations. On average, blacks had more
prior arrests (mean = 5.05) and incarcerations (mean = 2.50), compared to Latinos (2.53 and 0.92, respectively), whites (1.90 and 0.83,
respectively), and Asians (0.85 and 0.23, respectively). Overall, nearly twice as many blacks had a prior arrest as whites, and nearly
three times as many as Asians. Latinos were also more likely to have a prior arrest relative to both whites and Asians; however, when
compared to blacks, the data suggests that they are less likely to have a prior arrest, and this is true across all offense categories.
Across all offense levels, blacks were two-to-three times more likely to have felony arrests than were whites, and three-to-five times
more likely than were Asians. Although the percentages were smaller for Latinos, they were noticeably more likely to have prior
felony arrests in comparison to whites or Asians. Black defendants were also considerably more likely to have a prior conviction and
prior custodial or noncustodial sentence. The difference in terms of prior prison sentence was particularly large between blacks and
Asians: blacks were about twelve-to-fifteen times more likely to have a prior prison sentence (see Table 1). Table 1: Prior Record by
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Defendant Race and Offense Level n63 B. Plea-Bargaining Guidelines in New York County As described above, the vast majority of
prosecutions end in a plea bargain. Plea bargains require a defendant to admit culpability on a particular charge, either the highest
charged offense or a lower charge. In New York County, plea offers include offers to a lesser charge and sentencing
recommendations. n64 Plea offers are made by the prosecutor, and all agreements must be approved by the presiding judge. n65
Prosecutors can make plea offers at any point before a trial verdict, but the most favorable plea offers for the defendant are generally
made at arraignment, with offers becoming less favorable with subsequent adjournments. n66 Although it is unclear how many
prosecutor's offices in the United States have plea guidelines, it is safe to say that most states have a set of criminal procedure law
rules which individual prosecutor's offices supplement with a set of principles used to train new prosecutors in handling the plea offer
and negotiation process. In New York State, some basic rules about plea offers are included in sections 220.10 through 220.60 of the
New York Criminal Procedure Law, but the law does not define what the role of prior arrest should be in making plea offers. n67 In
practice, however, prior arrest is one of the factors used in plea determination, with its use explicitly recommended in some
circumstances. In New York County, plea offers for defendants with one or no prior arrests are determined with reference to DANY's
Plea Offer Guidelines. n68 The guidelines use defendants' arrest history and the most severe of their pending charges to make
recommendations. n69 These two factors, then, may be particularly important to examine in exploring racial and ethnic disparities in
plea offers. The guidelines recommend that only defendants who have no history of prior arrests should be offered a plea to a lesser
charge; reduced charge offers should not be made to defendants who do have such a history. n70 The guidelines also suggest that
recommended sentences should be increased for defendants who have been re-arrested on the same or similar offenses, although they
do not include recommendations specific to defendants with two or more arrests. n71 C. The Impact of a Prior Record on Plea
Bargaining Outcomes in New York County While DANY's guidelines make plea recommendations for defendants with one or no
previous arrests, they do not cover defendants with longer criminal histories. Plea offers are left to the discretion of the prosecuting
Assistant District Attorney (ADA) when the defendant has more than one prior arrest. In order to examine what impact this increase in
discretion has, this Section disaggregates data by defendants' arrest records. Table 2 shows the frequencies and percentages of guilty
pleas made by defendants, broken down by race and defendants' number of prior arrests. For felonies, and among defendants with no
prior arrest, a slightly greater percentage of whites had their cases disposed through prosecutorial plea offers (55% for whites, 53% for
Asians, 52% for blacks, and 51% for Latinos). A greater difference was observed among defendants with one prior arrest (for any
offense), with 67% of cases involving white defendants disposed by plea (as compared to 53% for [*985] Asians, 52% for blacks, and
51% for Latinos). Among defendants with two or more arrests, the differences in rates of final disposition by plea were slightly
greater, with whites again having the highest percentage (72% for whites, 67% for Asians, 66% for blacks, and 64% for Latinos).
Overall, regardless of their prior record, whites were more likely to have their case disposed of as a guilty plea. However, we did not
find noticeable differences by race in terms of pleas at arraignment versus post arraignment. Nearly all felony defendants, regardless
of their race, enter guilty pleas after arraignment. Table 2: Frequency and Percentage of Guilty Pleas Made at and After Arraignment
by Defendants with None, One, or Two or More Prior Arrests n72 [*986] For misdemeanors, the differences were more noticeable,
and whites were no longer most likely to have their case disposed by guilty plea for all three prior record categories, as was the case
for felonies. Among defendants with no prior arrest, a greater percentage of blacks had their cases disposed by guilty plea (49%),
closely followed by Asians (47%), then by Latinos (45%), and then by whites (43%). There were almost no differences among
defendants with one prior arrest, and whites, once again, had a greater percentage of guilty plea dispositions among the defendants
with two or more arrests (82% for whites, 76% for blacks, 66% for Latinos, and 66% for Asians). Furthermore, compared to blacks
with no prior arrest, whites with no prior arrest were more likely to enter guilty pleas after their arraignment (69% of whites as
opposed to 62% of blacks). Finally, for violations, racial differences in case disposition by guilty plea were striking. For example,
among defendants with no prior arrest, 38% of blacks, 22% of whites, 20% of Latinos, and 8% of Asians had their case disposed by
guilty plea. These differences decreased among defendants with a prior record, although Asians were still least likely to have cases
disposed by guilty plea. Additionally we conducted a serious of multi-variate analyses to examine the impact of prior arrest versus
prior prison sentence on sentence and charge offers for misdemeanor offenses n73 which took into account differences attributable to
other factors, such as: defendant age, gender, race, and ethnicity; severity of the charges and number of counts; type of crime (person,
property, or drug); pretrial custodial status; type of defense counsel (court-appointed, Legal Aid, NY Defender Services,
Neighborhood Defender Service, or private counsel). n74 These
analyses suggested that racial and ethnic
differences increase markedly in plea offers whenever prosecutors consider prior arres t, as
opposed to prior sentence. If prior prison sentence were to be considered, blacks would be 12%
more likely and Latinos 6% more likely to receive a custodial plea offer; however, if prior
arrest is used as a factor instead, blacks become 20% more likely and Latinos 10% more
likely to receive a punitive plea offer (i.e., an increase of 8% and 4%, respectively). This influence of prior arrest on
sentence offers is consistent with the DANY Plea Offer Guidelines, described earlier, and suggests that if these guidelines were based
on prior sentences, as opposed to prior arrest, much of the difference between black and white, [*987] and between Latino and white
defendants would be reduced, at least in misdemeanor cases. III. Cost Argument There are a number of fiscal, personal, and legal costs
associated with the increased use of prior arrests as a factor in plea bargaining, and such costs are especially problematic when the
arrests were for low-level, nonviolent crimes, since the costs may be disproportionate to the crimes. n75 As the New York County data
showed, blacks and Latino defendants were most likely to have their cases dismissed, n76 and although the case dismissal may have
been beneficial to them at that point, a higher dismissal rate may also mean that these defendants have incurred higher and avoidable
costs of unnecessary arrest and detention. Indeed, while the costs of conviction and incarceration have received much more focus,
being arrested in and of itself has numerous costs; these costs are then compounded when arrests make prosecutors more likely to
offer more punitive plea offers and defendants more likely to take them. n77 When the decision to incarcerate and for how long has
161
been based on noncustodial arrests, the costs of arrest may be particularly excessive. In this Part, we summarize recent research on the
financial and social impact of arrest and detention to support our earlier argument that the use of arrests, and subsequent arrest records,
in criminal case processing should be minimized to save criminal justice dollars and avoid unfair and costly treatment of all
defendants, especially those targeted by aggressive and inequitable arrest practices. Loss of time and money are two direct costs to the
criminal justice system. First, police, prosecutors, defense attorneys, judges, and other court actors must expend time processing these
cases, even when the ultimate result is dismissal. Police officers must spend time processing arrests, regardless of whether they are for
felonies or low-level misdemeanors, which leads to extensive overtime costs to the department; but even when processing occurs
during regular working hours, this is time that the police officer is no longer on the streets. n78 Second, the increased number of
defendants also results in higher caseloads for prosecutors and defense attorneys, and longer case [*988] processing time as courts
become increasingly flooded. In all of these scenarios, the time spent on each case translates to higher financial costs due to personnel
expenses. There are also financial costs involved in housing and caring for detainees. First, all arrestees must be confined while they
await arraignment. While the right to a speedy trial requires that all cases be arraigned within twenty-four hours, it is not unusual for
them to take longer. n79 Thus, at a minimum, the vast majority of arrestees must be housed and fed for twenty-four hours. Holding
cells are often overcrowded and conditions deplorable. n80 Injuries due to the resulting violence or health problems resulting from
lack of needed medical treatment or infectious disease n81 may lead to additional medical costs either in jail, if the arrestee is
detained, or in the community, in the case of dismissal. If the person is further detained pretrial or posttrial, the costs associated with
treating both new and previously existing conditions may be high, particularly for those with mental health or substance abuse
problems. n82 The costs of housing detainees postarraignment and postconviction are much higher even for low-level crimes. In fact,
the NYC Independent Budget Office (IBO) estimated that as of 2012, the average annual cost per Rikers inmate was $ 167,731. n83
These costs could be greatly reduced if case-processing times were reduced: high numbers of arrests necessarily contribute greatly to
case-processing times as they increase the number of cases to be processed. In New York City, average length of stay was fifty-four
days in 2014, n84 but it can be far longer. However, 76% of detainees are being held pretrial. n85 The annual costs of detaining
defendants pretrial are considerable, and in many cases, unnecessary, as when defendants are held solely because they are unable to
make bail. n86 The IBO estimated that the annual cost of detaining defendants pretrial solely because they were unable to make bail
was [*989] roughly $ 125 million - $ 25 million higher than the annual cost of housing defendants remanded without bail. n87
Additional costs are incurred transporting defendants to court and holding them while they await their appearance before a judge: n88
according to reports, the City's Department of Correction spends $ 30.3 million annually on transportation costs alone. n89 Personal
costs are myriad, may affect not only the arrestee, but the arrestee's family, and are not limited to arrests resulting in custodial
sentences. n90 While multiple arrests may increase the chance that the defendant will take a plea offer or be convicted at trial, even
when the detainee is not ultimately convicted, he may face lengthy confinement times due to case processing delays. The gravest
consequences of these delays were recently given a public face in the case of Kalief Browder. Browder committed suicide at the age
of twenty-two after being jailed for three years without trial or conviction; his charges were eventually dropped for lack of evidence.
n91 The crime for which Browder had been arrested was stealing a backpack. n92 Perhaps it is not surprising, then, that it is often far
easier for an arrestee to plead guilty than to fight his conviction. n93 Even if case-processing times were reduced, fighting a conviction
requires additional court dates, and thus additional time away from work or school, which may increase the likelihood of even the
innocent pleading guilty. n94 Furthermore, a prior record is likely to lead to harsher sanctions; n95 thus, both defendants and defense
attorneys may be more inclined to view plea offers favorably regardless of the circumstances of the crime or the conditions of the
offer. However, once a defendant has pleaded guilty, [*990] he may incur financial costs (e.g., fines) in addition to a criminal record
and all of its attendant consequences. n96 These consequences - some of which can also result from simply an arrest - may include
deportation, loss of custody, loss of property, ejection from public and other housing, loss of current employment or eligibility for
current employment, difficulty obtaining future employment, driver's license suspension, and lengthy incarceration when a low-level
crime results in parole or probation violation. n97 Time spent signing up for and then performing community service may result in the
loss of work or school days and unemployment, and even an arrest that results in dismissal can affect employment (e.g., by leading to
unexplained absences). n98 There may also be serious health consequences: although inmates are at risk of disease while incarcerated,
many enter the justice system with serious health problems due to poor health care prior to arrest n99 and their health may then further
deteriorate while imprisoned. Those with chronic conditions may be at particular risk of health consequences, given that jails and
prisons tend to limit care largely to treatment of acute complaints. n100 Although increasing the frequency of arrests for low-level
crimes has long been used as a tactic to reduce crime and serve as a deterrent, these types of public nuisance or quality-of-life arrests
may also have negative effects on public safety for two reasons: first, because they harm police-community relationships, and second,
because the time spent incarcerated may make detainees more likely to commit crimes after release. n101 Frequent arrests for low-
level offenses are often viewed as unjust and discriminatory; as a result, they decrease trust in police and the criminal justice system,
and beliefs in their legitimacy. n102 Research shows that residents of highly-policed communities may be less likely to report crime
and to cooperate with law enforcement. n103 Paradoxically, such policies may even increase the likelihood of some individuals [*991]
committing crimes. n104 In addition to the problems related to decreased trust in the police, the loss of employment and difficulties
involved with obtaining gainful employment may make engaging in criminal activity upon release more likely. n105 Furthermore,
family and community connections may have been eroded, while connections to others involved in criminal activity will have
increased, simply due to the fact of incarceration. n106 Conclusion Criminal
justice decision making has been
long described by social scientists and legal scholars as racialized and unequal. n107 The NYPD,
just like numerous other police agencies across the country, has been under fire for disproportionately arresting minority defendants,
especially for low-level drug offenses. n108 The opposite end of the case processing - sentencing - has also been scrutinized.
Researchers have historically focused on sentencing disparities typically associated with judicial discretion. n109 Efforts to demonize
judges' sentencing discretion led to a number of initiatives in the 1970s and 1980s with the U.S. Congress and many state legislatures
passing laws to impose fixed sentences for specific offenses, most often for drug offenses. Among these initiatives, the U.S.
162
Sentencing Guidelines is perhaps the most notable example. n110 The idea behind creating these guidelines in 1987 was to vastly
curtail previously unfettered judicial discretion by determining types and length of sentences for more than 2,000 offenses that federal
judges could use in sentencing. n111 These initiatives, however, may in fact have had the opposite effect: instead of ensuring greater
fairness through tightly regulating judicial discretion, the guidelines awarded prosecutors [*992] with even greater leverage for
charging and plea decisions. This poses a number of challenges that are well documented elsewhere, n112 but, from the research
perspective, because prosecutorial decisions are not as transparently made as judicial ones, identifying decision points that contribute
to unequal treatment of defendants is difficult. The lack of transparency is particularly apparent with regard to the plea-bargaining
process, making it difficult to delineate the factors that prosecutors consider when deciding what type of offer to make, or how much
to negotiate that offer. The study described as part of the Moral Argument n113 represents a rare effort to use actual prosecutorial data
and to document an empirical relationship between arrest record and plea offer types. The data showed that prior arrests influence
sentence offers more than prior prison sentences. This
significant influence of prior arrests on sentence
offers is consistent with the DANY Plea Offer Guidelines n114 which recommend more
severe punishments for defendants with prior arrest history. The findings also suggest,
however, that if these guidelines were based on prior sentences, as opposed to prior arrests,
much of the difference between black and white, and Latino and white defendants would
have disappeared, at least in misdemeanor cases. In addition to contributing to unfair and
unequal decision making, the use of prior arrest record for cases that did not result in
conviction also seems to contradict the principle of the presumption of innocence. If arrests
have not led to conviction, defendants are presumed innocent, and therefore, these records
should not be used as the basis for making sentences for subsequent cases more punitive, no
matter how long the arrest history might be. However, as noted in the Legal Argument,
n115 the use of prior record in case processing is insufficiently regulated by both statutory
and case laws, which leaves the door wide open for prosecutor's offices to choose which
factors to consider during the plea negotiations. Furthermore, as described under the Cost Argument, n116
unnecessary arrest and detention does substantial damage to the criminal justice system and the general public: it is wasteful when
criminal justice funds are desperately needed elsewhere; it imposes higher caseloads on justice professionals who are already
overworked; and, most importantly, arrests lead to harsher plea offers, longer [*993] subsequent sentences, and even additional
arrests, which plagues communities of color and damages public trust in the justice system. For all of these reasons, we argue that (a)
arrests should be viewed as a last resort, to be used whenever issuing warnings, citations, or summonses would be inadequate
safeguards of public safety, and (b) prosecutors' offices should not use prior arrest as a factor by default when making plea offer
determinations unless they are able to justify how using prior conviction record alone does not serve the purposes of justice, safety,
and fairness, which these very offices are created to ensure.
Plan bargain saves defendants money

163
The Judicial System, p. 631-2
n31 The opportunity to plea bargain also allows the defendant to gain some control in the
disposition and choose whether to accept a less severe sentence or to proceed [with trial. n32
After the defendant enters a guilty plea, the court cannot impose a harsher sentence than that
agreed to per the plea deal. n33 Furthermore, the defendant can avoid extensive financial costs
associated with a trial by electing to plea bargain. n34 B. Deficient Counsel and Prejudicial
Effects: The Strickland Test for Determining Whether Counsel Assisted Effectively, as
Guaranteed by the Sixth Amendment
164
Racism – Disproportionate Incarceration Links
Black and brown men more likely to be subject to incarceration
Chapter 3 turns our attention to the role of race in the U.S. criminal justice system. It describes
the method to the madness—how a formally race-neutral criminal justice system can manage
to round up, arrest, and imprison an extraordinary number of black and brown men, when
people of color are actually no more likely to be guilty of drug crimes and many other offenses
than whites. This chapter debunks the notion that rates of black imprisonment can be explained
by crime rates and identifies the huge racial disparities at every stage of the criminal justice
process—from the initial stop, search, and arrest to the plea bargaining and sentencing
phases. In short, the chapter explains how the legal rules that structure the system guarantee
discriminatory results. These legal rules ensure that the undercaste is overwhelmingly black and
brown.Alexander, Michelle. The New Jim Crow (p. 17). The New Press. Kindle Edition.
Plea bargaining works to the advantage of whites
About 90 percent of those sentenced to prison for a drug offense in Illinois are African
American.18 White drug offenders are rarely arrested, and when they are, they are treated
more favorably at every stage of the criminal justice process, including plea bargaining and
sentencing.19 Whites are consistently more likely to avoid prison and felony charges, even
when they are repeat offenders.20 Black offenders, by contrast, are routinely labeled felons
and released into a permanent racial undercaste. The total population of black males in
Chicago with a felony record (including both current and ex-felons) is equivalent to 55 percent
of the black adult male population and an astonishing 80 percent of the adult black male
workforce in the Chicago area.21 This stunning development reflects the dramatic increase in
the number and race of those sent to prison for drug crimes. From the Chicago region alone, the
number of those annually sent to prison for drug crimes increased almost 2,000 percent, from
469 in 1985 to 8,755 in 2005.22 That figure, of course, does not include the thousands who
avoid prison but are arrested, convicted, and sentenced to jail or probation. They, too, have
criminal records that will follow them for life. More than 70 percent of all criminal cases in the
Chicago area involve a class D felony drug possession charge, the lowest-level felony charge.23
Those who do go to prison find little freedom upon release. When people are released from
Illinois prisons, they are given as little as $10 in “gate money” and a bus ticket to anywhere in
the United States. Most return to impoverished neighborhoods in the Chicago area, bringing
few resources and bearing the stigma of their prison record.24 In Chicago, as in most cities
165
across the country, ex-offenders are banned or severely restricted from employment in a large
number of professions, job categories, and fields by professional licensing statutes, rules, and
practices that discriminate against potential employees with felony records. According to a Commented [1]: use this, good impact. adverse effect
study conducted by the DePaul University College of Law in 2000, of the then ninety-eight of discrimination seep into defendants' lives and
perpetuate cycle of racial inequalities in the workplace
occupations requiring licenses in Illinois, fifty-seven placed stipulations and/or restrictions on
applicants with a criminal record.25 Even when not barred by law from holding specific jobs, ex-
offenders in Chicago find it extraordinarily difficult to find employers who will hire them,
regardless of the nature of their conviction. They are also routinely denied public housing and
welfare benefits, and they find it increasingly difficult to obtain education, especially now that
funding for public education has been hard hit, due to exploding prison budgets. The impact of
the new caste system is most tragically felt among the young. In Chicago (as in other cities
across the United States), young black men are more likely to go to prison than to college.26
As of June 2001, there were nearly 20,000 more black men in the Illinois state prison system
than enrolled in the state’s public universities.27 In fact, there were more black men in the
state’s correctional facilities that year just on drug charges than the total number of black men
enrolled in undergraduate degree programs in state universities.28 To put the crisis in even
sharper focus, consider this:just 992 black men received a bachelor’s degree from Illinois state
universities in 1999, while roughly 7,000 black men were released from the state prison system
the following year just for drug offenses.29 The young men who go to prison rather than
college face a lifetime of closed doors, discrimination, and ostracism. Their plight is not what
we hear about on the evening news, however. Sadly, like the racial caste systems that preceded
it, the system of mass incarceration now seems normal and natural to most, a regrettable
necessity.Alexander, Michelle. The New Jim Crow (p. 190). The New Press. Kindle Edition.
Just 992 black men received a bachelor’s degree from Illinois state universities in 1999, while
roughly 7,000 black men were released from the state prison system the following year just for
drug offenses.29 The young men who go to prison rather than college face a lifetime of closed
doors, discrimination, and ostracism. Their plight is not what we hear about on the evening
news, however. Sadly, like the racial caste systems that preceded it, the system of mass
incarceration now seems normal and natural to most, a regrettable necessity.Alexander,
Michelle. The New Jim Crow (p. 190). The New Press. Kindle Edition.
166
Injustice Advantage – General
Indigent defendants with terrible or overworked lawyers are forced to plead

guilty and are subject to mandatory minimums
I. Introduction: Plea Bargaining's Failure
Gideon v. Wainwright n1 heralded a new age in American criminal prosecutions. With the
Sixth Amendment's right to counsel incorporated into the Fourteenth Amendment and applied to
the states, all suspects, rich or poor, might indeed have equal access to justice. Indigent black men
in the South would have the same opportunity to fight felony criminal charges and would receive
the same sentencing discounts of favorable guilty pleas as rich white Northerners, n2 and the
innocent would be accurately separated by adversarial testing from the guilty.
Few scholars or practitioners in 2013 believe that this opportunity has been realized. n3 A
primary culprit is legislative refusal to adequately fund defense counsel for indigent
suspects, n4 but the Court shares the blame by settling on the contours of our current two-
pronged test in Strickland v. Washington that determines when counsel is ineffective and the
defendant is accordingly prejudiced. n5 Today, almost exactly fifty years post-Gideon, indigent
defendants (who comprise eighty percent of total defendants) n6 often get substandard
counsel, n7 and innocent individuals are rarely but sometimes convicted or plead guilty. n8
Federally charged criminal defendants obtain talented federal public defenders, who are at least as
competent as private counsel. Ninety-seven point four percent of federal criminal convictions
in 2010 were by guilty plea n9 not because defendant's had incompetent counsel, but
because federal prosecutors cherry-pick cases so that generally only easily-provable cases
are charged, and draconian and mandatory minimum penalties and substantial assistance
reductions stack the deck heavily in favor of the government. n10 Indigent defendants
charged in state courts are generally stuck with either competent appointed counsel facing
unreasonable pay caps and insurmountable case loads who therefore cannot possibly do
their jobs, n11 or incompetent and unprepared attorneys who sleep, drink, take drugs, and
bumble their way through the trial or plea process.
Defendants don’t know all the key facts when entering pleas
Review, Plea Bargaining After Lafler and Frye: Article: Plea-Bargaining Law After Lafler and
Frye, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2283210, p. 614-5
It Is Simply Not True That All Defendants Know the Key Facts Determining Their Criminal
Liability When They Enter a Plea
167
Lack of knowledge of one's own guilt or innocence can arise in a variety of circumstances.
Some criminal defendants, because of mental illness or intellectual disability, may simply not
remember precisely what transpired during an alleged crime, or exactly what role they played
during complex, emotionally-charged, and fast-unfolding events. Such individuals, moreover, are
often especially susceptible to suggestion and may be led to believe by investigators or
overzealous interrogators that they engaged in conduct in which, in fact, they did not engage.
Problems with personal recollection of allegedly criminal conduct may arise from other
causes as well. Indeed, the passage of time alone might cloud otherwise sound memories and
make it difficult for a defendant to remember with the necessary degree of clarity where he or she
was, or what his or her role had been, during a particular transaction. Difficulty in accurately
remembering events, moreover, may often be exacerbated by the use of intoxicants. It would not
be surprising to discover that many criminal defendants simply cannot recall with certainty events
that took place while they were stoned, drunk, or high. Given the documented large percentage of
prisoners with mental illness and substance abuse problems and the extraordinarily high
percentage of convictions obtained through guilty pleas, it would be surprising if substantial
numbers of criminal defendants did not plead guilty despite a basic lack of personal knowledge
about the facts determining their actual guilt. Failure to apply Brady to guilty pleas means that
innocent defendants will more often enter false guilty pleas due to lack of understanding of
evidence or their role in the criminal transaction.
Plea process not fair
Stephanos Bibas, Professor of Law and Criminology, University of Pennsylvania, Duquenes Law
Review, Summer 2013, Plea Bargaining After Lafler and Frye: Article: The Duties of Non-
Judicial Actors in Ensuring Competent Negotiation, p. 625-6
I am delighted that Professor Wes Oliver and the Duquesne University School of Law are
hosting this timely and important symposium on plea-bargaining after Lafler n1 and Frye n2 and
this panel on what it takes to make defense counsel effective negotiators. Those decisions have
provoked a long-overdue conversation about what kind of defense lawyering is effective and
constitutionally required in a world of guilty pleas. Though the Court recognized decades ago, in
Hill v. Lockhart, n3 that ineffective assistance could taint guilty pleas, it is only now working
through what that principle must mean and how to implement it in practice.
Lafler and Frye are gratifying in multiple ways. They are symbolically important and can
help to educate the bar and change its culture. The central message is that, pace Judge
Easterbrook, n4 one cannot blindly trust that the parties will plea bargain well in the shadow
of expected trial outcomes. The market for pleas does not function well enough to ensure
that plea-bargained outcomes track closely expected trial outcomes, the need to inflict
retribution or deter or incapacitate, or similar merits considerations. n5 One of the most
important contributing factors to poor plea bargaining is that defense attorneys are often
inexperienced, inept, underfunded, or overworked. n6 But another is that the standards for
effective assistance of counsel, which are already lax, have been focused almost exclusively
168
on mistakes at trial or in preparing for trial. One cannot trust trial-focused ineffective-
assistance-of-counsel doctrine to guard against plea-bargaining errors.
I agree with Professor Alschuler's prediction at this symposium that courts are going to
overturn few convictions ex post. n7 Courts will not be throwing the jailhouse doors open. But
that metric of its impact is going to vastly understate the effect of the decisions. The long-term
effect of Lafler and Frye on the system will be ex ante. The situation is analogous to the
problem of wrongful convictions. DNA evidence is present in only a sliver of cases, so if one
focuses on exonerations ex post that implicate false confessions or flawed eyewitness
identifications, one misses the bigger picture. Nevertheless, those wrongful convictions shine
a spotlight that is starting to fuel innocence commissions and reform movements. These
reformers have explored ways to prevent and police the causes of wrongful convictions by
making a record up front, by taping the interrogation or the like, to prevent these mistakes from
happening in the first place. Similarly, Lafler and Frye will drive changes in the pre-conviction
plea-bargaining process.
People plea to avoid even longer sentences

Those who have been swept within the criminal justice system know that the way the system
actually works bears little resemblance to what happens on television or in movies. Full-blown
trials of guilt or innocence rarely occur; many people never even meet with an attorney;
witnesses are routinely paid and coerced by the government;government; police regularly stop
and search people for no reason whatsoever; penalties for many crimes are so severe that
innocent people plead guilty, accepting plea bargains to avoid harsh mandatory sentences; and
children, even as young as fourteen, are sent to adult prisons. Rules of law and procedure, such
as “guilt beyond a reasonable doubt” or “probable cause” or “reasonable suspicion,” can easily
be found in court cases and law-school textbooks but are much harder to find in real
life.Alexander, Michelle. The New Jim Crow (pp. 59-60). The New Press. Kindle Edition.
Defendants not told of the advantages and disadvantages of pleas
One might imagine that a criminal defendant, when brought before the judge—or when
meeting with his attorney for the firsttime—would be told of the consequences of a guilty plea
or conviction. He would be told that, if he pleads guilty to a felony, he will be deemed “unfit” for
jury service and automatically excluded from juries for the rest of his life.2 He would also be told
that he could be denied the right to vote. In a country that preaches the virtues of democracy,
one could reasonably assume that being stripped of basic political rights would be treated by
judges and court personnel as a serious matter indeed. Not so. When a defendant pleads guilty
to a minor drug offense, nobody will likely tell him that he may be permanently forfeiting his
right to vote as well as his right to serve on a jury—two of the most fundamental rights in any
modern democracy.
He will also be told little or nothing about the parallel universe he is about to enter, one that
promises a form of punishment that is often more difficult to bear than prison time: a lifetime of
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shame, contempt, scorn, and exclusion. In this hidden world, discrimination is perfectly legal. As
Jeremy Travis has observed, “In this brave new world, punishment for the original offense is no
longer enough; one’s debt to society is never paid.”3 Other commentators liken the prison label
to “the mark of Cain” and characterize the perpetual nature of the sanction as “internal exile.”4
Myriad laws, rules, and regulations operate to discriminate against ex-offenders and effectively
prevent their reintegration into the mainstream society and economy. These restrictions
amount to a form of “civic death” and send the unequivocal message that “they” are no longer
part of “us.” Once labeled a felon, the badge of inferiority remains with you for the rest of your
life, relegating you to a permanent second-class status. Consider, for example, the harsh reality
facing a first-time offender who pleads guilty to felony possession of marijuana. Even if the
defendant manages to avoid prison time by accepting a “generous” plea deal, he may discover
that the punishment that awaits him outside the courthouse doors is far more severe and
debilitatingthan what he might have encountered in prison. A task force of the American Bar
Association described the bleak reality facing a petty drug offender this way: [The] offender may
be sentenced to a term of probation, community service, and court costs. Unbeknownst to this
offender, and perhaps any other actor in the sentencing process, as a result of his conviction he
may be ineligible for many federally-funded health and welfare benefits, food stamps, public
housing, and federal educational assistance. His driver’s license may be automatically
suspended, and he may no longerqualify for certain employment and professional licenses. If he
is convicted of another crime he may be subject to imprisonment as a repeat offender. He will
not be permitted to enlist in the military, or possess a firearm, or obtain a federal security
clearance. If a citizen, he may lose the right to vote; if not, he becomes immediately
deportable.5 Despite the brutal, debilitating impact of these “collateral consequences” on ex-
offenders’ lives, courts have generally declined to find that such sanctions are actually
“punishment” for constitutional purposes. As a result, judges are not required toinform criminal
defendants of some of the most important rights they are forfeiting when they plead guilty to a
felony. In fact, judges, prosecutors, and defense attorneys may not even be aware of the full
range of collateral consequences for a felony conviction. Yet these civil penalties, although not
considered punishment by our courts, often make it virtually impossible for ex-offenders to
integrate into the mainstream society and economy upon release. Far from collateral, these
sanctions can be the most damaging and painful aspect of a criminal conviction. Collectively,
these sanctions send the strong message that, now that you have been labeled, you are no
longer wanted. You are noAlonger part of “us,” the deserving. Unable to drive, get a job, find
housing, or even qualify for public benefits, many ex-offenders lose their children, their dignity,
and eventually their freedom—landing back in jail after failing to play by rules that seem
hopelessly stacked against them. The churning of African Americans in and out of prisons today
is hardly surprising, given the strong message that is sent to them that they are not wanted in
mainstream society. In Frederick Douglass’s words, “Men are so constituted that they derive
their conviction of their own possibilities largely from the estimate formed of them by others. If
nothing is expected of apeople, that people will find it difficult to contradict that expectation.”6
More than a hundred years later, a similar argument was made by a woman contemplating her
eventual release into a society that had constructed a brand-new legal regime designed to keep
her locked out, fifty years after the demise of Jim Crow. “Right now I’m in prison,” she said. “Like
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society kicked me out. They’re like, ‘Okay, the criminal element, We don’t want them in society,
we’re going to put them in prisons.’ Okay, but once I get out, then what do you do? What do
you do with all these millions of people that have been in prison and been released? I mean, do
you accept them back? Or do you keep themas outcasts? And if you keep them as outcasts, how
do you expect them to act?”7 Remarkably, the overwhelming majority of ex-offenders struggle
mightily to play by the rules and to succeed in a society seemingly hell-bent on excluding them.
Like their forbears, they do their best to survive, even thrive—against all odds.Alexander,
Michelle. The New Jim Crow (p. 144). The New Press. Kindle Edition.
The first question on the minds of many released prisoners as they take their first steps outside
the prison gates is where will they sleep that night. Some prisoners havefamilies eagerly
awaiting them—families who are willing to let their newly released relative sleep on the couch,
floor, or extra bed indefinitely. Most, however, desperately need to find a place to live—if not
immediately, at least soon. After several days, weeks, or months of sleeping in your aunt’s
basement or on a friend’s couch, a time comes when you are expected to fend for yourself.
Figuring out how, exactly, to do that is no easy task, however, when your felony record operates
to bar you from any public housing assistance. As one young man with a felony conviction
explained in exasperation, “I asked for an application for Section 8. They asked me if I had a
felony. I said, ‘yes.’ . . .They said, ‘Well, then, this application isn’t for you.’”8 This young man
had just hit his first brick wall coming out of prison. Housing discrimination against people
branded felons (as well as suspected “criminals”) is perfectly legal. During Jim Crow, it was legal
to deny housing on the basis of race, through restrictive covenants and other exclusionary
practices. Today, discrimination against felons, criminal suspects, and their families is routine
among public and private landlords alike. Rather than racially restrictive covenants, we have
restrictive lease agreements, barring the new “undesirables.” The Anti-Drug Abuse Act of 1988,
passedby Congress as part of the War on Drugs, called for strict lease enforcement and eviction
of public housing tenants who engage in criminal activity. The act granted public housing
agencies the authority to use leases to evict any tenant, household member, or guest engaged
in any criminal activity on or near public housing premises. In 1996, President Clinton, in an
effort to bolster his “tough on crime” credentials, declared that public housing agencies should
exercise no discretion when a tenant or guest engages in criminal activity, particularly if it is
drug-related. In his 1996 State of the Union address, he proposed “One Strike and You’re Out”
legislation, which strengthened eviction rulesand strongly urged that drug offenders be
automatically excluded from public housing based on their criminal records. He later declared,
“If you break the law, you no longer have a home in public housing, one strike and you’re out.
That should be the law everywhere in America.”9 In its final form, the act, together with the
Quality Housing and Work Responsibility Act of 1998, not only authorized public housing
agencies to exclude automatically (and evict) drug offenders and other felons; it also allowed
agencies to bar applicants believed to be using illegal drugs or abusing alcohol—whether or not
they had been convicted of a crime. These decisions can be appealed, but appeals are rarely
successfulsuccessful without an attorney—a luxury most public housing applicants cannot
afford. In response to the new legislation and prodding by President Clinton, the Housing and
Urban Development Department (HUD) developed guidelines to press public housing agencies
to “evict drug dealers and other criminals” and “screen tenants for criminal records.”10 HUD’s
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“One Strike Guide” calls on housing agencies to “take full advantage of their authority to use
stringent screening and eviction procedures.” It also encourages housing authorities not only to
screen all applicants’ criminal records, but to develop their own exclusion criteria. The guide
notes that agency ratings and funding are tied towhether they are “adopting and implementing
effective applicant screening,” a clear signal that agencies may be penalized for not cleaning
house.11 Throughout the United States, public housing agencies have adopted exclusionary
policies that deny eligibility to applicants even with the most minor criminal backgrounds. The
crackdown inspired by the War on Drugs has resulted in unprecedented punitiveness, as
housing officials began exercising their discretion to deny poor people access to public housing
for virtually any crime. “Just about any offense will do, even if it bears scant relation to the
likelihood the applicant will be a good tenant.”12Alexander, Michelle. The New Jim Crow (pp.
145-146). The New Press. Kindle Edition.
The consequences for real families can be devastating. Without housing, people can lose their
children. Take for example, the forty-two-year-old African American man who applied for public
housing for himself and his three children who were living with him at the time.13 He was
denied because of an earlier drug possession charge for which he had pleaded guilty and served
thirty days in jail. Of course, the odds that he would have been convicted of drug possession
would have been extremely low if he were white. But as an African American, he was not only
targeted by the drug war but then denied access to housing because of his conviction. Since
being denied housing, he haslost custody of his children and is homeless. Many nights he sleeps
outside on the streets. Stiff punishment, indeed, for a minor drug offense—especially for his
children, who are innocent of any crime. Remarkably, under current law, an actual conviction or
finding of a formal violation is not necessary to trigger exclusion. Public housing officials are free
to reject applicants simply on the basis of arrests, regardless of whether they result in
convictions or fines. Because African Americans and Latinos are targeted by police in the War on
Drugs, it is far more likely that they will be arrested for minor, nonviolent crimes. Accordingly,
HUD policies excluding people from housingassistance based on arrests as well as convictions
guarantee highly discriminatory results. Perhaps no aspect of the HUD regulatory regime has
been as controversial, however, as the “no-fault” clause contained in every public housing lease.
Public housing tenants are required to do far more than simply pay their rent on time, keep the
noise down, and make sure their homes are kept in good condition. The “One Strike and You’re
Out” policy requires every public housing lease to stipulate that if the tenant, or any member of
the tenant’s household, or any guest of the tenant, engages in any drug-related or other
criminal activity on or off the premises,the tenancy will be terminated. Prior to the adoption of
this policy, it was generally understood that a tenant could not be evicted unless he or she had
some knowledge of or participation in alleged criminal activity. Accordingly, in Rucker v. Davis,
the Ninth Circuit Court of Appeals struck down the “no-fault” clause, on the grounds that the
eviction of innocent tenants—who were not accused or even aware of the alleged criminal
activity—was inconsistent with the legislative scheme.14Alexander, Michelle. The New Jim Crow
(pp. 146-147). The New Press. Kindle Edition.
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Injustice Advantage – The Innocent Plead Guilty
Innocent people plead guilty to avoid long mandatory sentences
Once arrested, one’s chances of ever being truly free of the system of control are slim, often to
the vanishing point. Defendants are typically denied meaningful legal representation, pressured
by the threat of a lengthy sentence into a plea bargain, and then placed under formal control—
in prison or jail, on probation or parole. Most Americans probably have no idea how common it
is for people to be convicted without ever having the benefit of legal representation, or how
many people plead guilty to crimes they did not commit because of fear of mandatory
sentences.
Almost no one ever goes to trial. Nearly all criminal cases are resolved through plea
bargaining—a guilty plea by the defendantin exchange for some form of leniency by the
prosecutor. Though it is not widely known, the prosecutor is the most powerful law
enforcement official in the criminal justice system. One might think that judges are the most
powerful, or even the police, but in reality the prosecutor holds the cards. It is the prosecutor,
far more than any other criminal justice official, who holds the keys to the jail-house door. After
the police arrest someone, the prosecutor is in charge. Few rules constrain the exercise of his or
her discretion. The prosecutor is free to dismiss a case for any reason or no reason at all. The
prosecutor is also free to file more charges against a defendant thancan realistically be proven in
court, so long as probable cause arguably exists—a practice known as overcharging. The practice
of encouraging defendants to plead guilty to crimes, rather than affording them the benefit of a
full trial, has always carried its risks and downsides. Never before in our history, though, have
such an extraordinary number of people felt compelled to plead guilty, even if they are
innocent, simply because the punishment for the minor, nonviolent offense with which they
have been charged is so unbelievably severe. When prosecutors offer “only” three years in
prison when the penalties defendants could receive if they took their case to trial wouldbe five,
ten, or twenty years—or life imprisonment—only extremely courageous (or foolish) defendants
turn the offer down. The pressure to plead guilty to crimes has increased exponentially since the
advent of the War on Drugs. In 1986, Congress passed The Anti-Drug Abuse Act, which
established extremely long mandatory minimum prison terms for low-level drug dealing and
possession of crack cocaine. The typical mandatory sentence for a first-time drug offense in
federal court is five or ten years. By contrast, in other developed countries around the world, a
first-time drug offense would merit no more than six months in jail, if jail time is imposed at
all.70 Statelegislatures were eager to jump on the “get tough” bandwagon, passing harsh drug
laws, as well as “three strikes” laws mandating a life sentence for those convicted of any third
offense. These mandatory minimum statutory schemes have transferred an enormous amount
of power from judges to prosecutors. Now, simply by charging someone with an offense
carrying a mandatory sentence of ten to fifteen years or life, prosecutors are able to force
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people to plead guilty rather than risk a decade or more in prison. Prosecutors admit that they
routinely charge people with crimes for which they technically have probable cause but which
they seriously doubt they could ever in court.71 They “load up” defendants with charges that
carry extremely harsh sentences in order to force them to plead guilty to lesser offenses and—
here’s the kicker—to obtain testimony for a related case. Harsh sentencing laws encourage
people to snitch.Alexander, Michelle. The New Jim Crow (p. 88). The New Press. Kindle Edition.
The number of snitches in drug cases has soared in recent years, partly because the government
has tempted people to “cooperate” with law enforcement by offering cash, putting them “on
payroll,” and promising cuts of seized drug assets, but also because ratting out co-defendants,
friends, family, or acquaintances is often the only way to avoid a lengthy mandatory minimum
sentence.72 In fact, under the federal sentencing guidelines,providing “substantial assistance” is
often the only way defendants can hope to obtain a sentence below the mandatory minimum.
The “assistance” provided by snitches is notoriously unreliable, as studies have documented
countless informants who have fabricated stories about drug-related and other criminal activity
in exchange for money or leniency in their pending criminal cases.73 While such conduct is
deplorable, it is not difficult to understand. Who among us would not be tempted to lie if it was
the only way to avoid a forty-year sentence for a minor drug crime?Alexander, Michelle. The
New Jim Crow (p. 88). The New Press. Kindle Edition.
The pressure to plea-bargain and thereby “convict yourself” in exchange for some kindof
leniency is not an accidental by-product of the mandatory-sentencing regime. The U.S.
Sentencing Commission itself has noted that “the value of a mandatory minimum sentence 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.” Describing
severe mandatory sentences as a bargaining chip is a major understatement, given its potential
for extracting guilty pleas from people who are innocent of any crime. It is impossible to know
for certain how many innocent drug defendants convict themselves every year by accepting a
pleabargain out of fear of mandatory sentences, or how many are convicted due to lying
informants and paid witnesses, but reliable estimates of the number of innocent people
currently in prison tend to range from 2 percent to 5 percent.74 While those numbers may
sound small (and probably are underestimates), they translate into thousands of innocent
people who are locked up, some of whom will die in prison. In fact, if only 1 percent of
America’s prisoners are actually innocent of the crimes for which they have been convicted, that
would mean tens of thousands of innocent people are currently languishing behind bars in the
United States.Alexander, Michelle. The New Jim Crow (pp. 88-89). The New Press. Kindle
Edition.
The real point here, however, is not that innocent people are locked up. That has been true
since penitentiaries first opened in America. The critical point is that thousands of people are
swept into the criminal justice system every year pursuant to the drug war without much regard
for their guilt or innocence. The police are allowed by the courts to conduct fishing expeditions
for drugs on streets and freeways based on nothing more than a hunch. Homes may be
searched for drugs based on a tip from an unreliable, confidential informant who is trading the
information for money or to escape prison time. And once swept inside the system, people are
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often denied attorneys or meaningfulrepresentation and pressured into plea bargains by the
threat of unbelievably harsh sentences—sentences for minor drug crimes that are higher than
many countries impose on convicted murderers. This is the way the roundup works, and it
works this way in virtually every major city in the United States.Alexander, Michelle. The New
Jim Crow (p. 89). The New Press. Kindle Edition.
Innocent defendants are pleading guilty
Review, Plea Bargaining After Lafler and Frye: Article: Plea-Bargaining Law After Lafler and Frye,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2283210 p. 615-8
iii.Exonerees and Guilty Pleas: The Evidence of a False Guilty Plea Problem Finally, and
perhaps most significantly, it has become increasingly apparent that actually innocent
defendants do plead guilty. Innocence, while a relevant consideration for a defendant charged]
with a criminal offense who is considering whether or not to enter a guilty plea, is not a
dispositive consideration and does not prevent criminal defendants from pleading guilty.
n119 The fact that innocent individuals plead guilty has been empirically documented.
According to current data in the National Registry of Exonerations ("Registery"), nine
percent of exonerated defendants were convicted by guilty plea. n120 As the Registry's
compilers acknowledge, this figure almost certainly vastly undercounts the number of
innocent individuals who plead guilty, as the practical barriers to exoneration following
guilty pleas, including the lack of a trial record and the routine waiver of appellate and
collateral review, make it far harder to obtain post-conviction relief. n121 My own research
on exonerees in the Rampart and Tulia scandals indicates that, at least under certain conditions,
wrongly accused innocent defendants routinely plead guilty. In both Rampart and Tulia, large
numbers of prisoners were exonerated after it was discovered that law enforcement officials had
engaged in large-scale misconduct causing the wrongful conviction of scores of innocent persons.
Police misconduct ranged from the planting of false evidence to police perjury. n122 In those
two scandals, of sixty four actually innocent exonerees, 81%, or 52 out of 64, pled guilty
after having been falsely accused of engaging in criminal conduct by untruthful police
officers. n123 Only 19% of the Rampart and Tulia exonerees initially opted to contest the
charges at trial. n124 The experience of innocent exonerees in the Rampart and Tulia incidents
suggests that innocent defendants plead guilty for at least three important reasons. First, they
plead guilty because the evidence they expect the state to offer at trial--which they know to be
false--nonetheless would likely be compelling to neutral jurors and judges. Where innocent
defendants are convinced that their claims of innocence are likely to go unheeded, guilty pleas
look like rational behavior. Second, innocent defendants likely plead guilty in many cases for
the same reason that guilty defendants plead guilty: because the offer is too good to refuse.
Routine and systematic use of large trial penalties compel all defendants, including innocent ones,
to accept plea offers in order to limit their penal exposure. Compared with trial sentences, the
costs of pleading guilty are often relatively small, particularly for defendants who are incarcerated
pretrial and expect to serve a substantial portion of their expected plea sentences before their
cases get to trial in any event. In addition, the disincentive to pleading guilty to a felony charge is
substantially reduced for defendants with previous criminal convictions, given that they already
have absorbed many of the collateral costs of felony conviction. A third reason many innocent
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defendants plead guilty is that they perceive, often correctly, that they will not receive a fair
and unbiased hearing in the local courts. These concerns are especially pronounced for
members of ethnic minorities who must appear before racially-biased judges and juries, for
defendants with criminal records concerned that revelation of their records will bias factfinders
against them, and for indigents represented by underfunded and overburdened defense lawyers.
Such defendants are simply not in a position to demand a jury trial, even when they are in fact
innocent, because they reasonably fear that their lawyers will not have the resources or interest to
undertake the kind of full-throttle defense necessary to undermine a facially-plausible
government case, and that even if they did, the decision makers in their cases might well hold one
thumb on the scales of justice. Extending Brady disclosure to guilty plea proceedings would help
to counter these factors and thereby reduce the likelihood of a plea-stage miscarriage of justice.
Disclosure of exculpatory evidence would help to counteract defendant resignation in the face of
misleading inculpatory evidence. Such evidence exists in a wide variety of forms but commonly
includes victim or eyewitness misidentifications, false confessions, faulty forensic evidence, false
accusations of criminal misconduct, and occasionally, police wrongdoing. Where material
exculpatory evidence exists, defendants need access to that evidence to make reasoned, accurate
decisions about whether to contest the criminal charges against them. Given the often enormous
trial penalties that defendants confront, access to material exculpatory evidence will not always
pre vent a defendant - even an innocent one - from pleading guilty. However, knowledge of the
existence of that evidence will assist counsel to negotiate plea agreements that properly reflect the
true probabilities of conviction and acquittal at trial. Having disclosed material exculpatory
evidence, prosecutors will be under pressure to offer, and defense lawyers empowered to demand,
more significant plea discounts to entice defendants to forgo their right to trial. Risk-averse
defendants might well prefer to accept more lenient plea offers rather than roll the dice at trial,
and these lenient plea-offers, from an economic perspective, offer a more accurate valuation of
the defendant's plea-waiver than an uninformed guilty plea would have, and thus a fairer and
more just resolution of the criminal accusation. In addition, disclosure of material exculpatory
evidence would impact the receptivity of the forum to the defendant's innocence claims in
important ways. Upon disclosure of exculpatory evidence, overburdened defense lawyers might
well choose to reallocate their resources from other cases in recognition of the enhanced
likelihood that the defendant is innocent or at least can proffer a more plausible defense at trial.
That information might prompt further pre-plea investigation, which might impact not only the
terms of settlement but also the decision whether or not to enter a plea at all. Second, secure in
the knowledge that the judge and jury will learn about favorable evidence, defendants might feel
more confident about declining plea offers and more willing to contest criminal charges at trial.
"Intelligent" guilty pleas are those made not only with an awareness of the consequences of the
guilty plea, but of the opportunity costs of foregoing trial. Ideally, defense counsel would have
full access to all of the evidence available to prosecutors prior to advising clients to plead guilty.
Long-recognized limits on the prosecutor's discovery obligations make that goal impractical, but
by ensuring that Brady material, at the least, is made available to defendants before they enter
guilty pleas, the Court can add critical substance to the requirement that pleas be made
"intelligently."
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Mass Incarceration Advantage
Plea bargaining supports mass incarceration

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2268096, p. 592
I will conclude with a more controversial statement. As we continue to make criminal
adjudication cheaper by substituting process-laden and time-consuming trials with
unregulated guilty pleas, we will continue to get more felony guilty pleas with their
attendant long prison terms. The plea revolution may well have contributed to our stunning
increase in incarceration rates during the last fifty years. n110
Plea bargains include discovery waivers that threaten the rights of the innocent
Susan R. Klein, Alice McKean Young Regents Chair in Law, University of Texas at Austin School of
Law, Summer 2013, Duquesne Law review, Plea Bargaining After Lafler and Frye: Article:
Monitoring the Plea Process, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2268096, P.
579-81
The third reason Judge Easterbrook's lauding of the plea negotiation process has become
incorrect is that in today's system information that may exonerate a defendant may never see
the light of day because of the very modern but increasingly popular practice, at least on the
federal level, of general discovery and Brady waivers in plea agreements. Some of these plea
agreements demand waivers not only of discovery rights under the FRCP and [*580] the
Jencks Act, but further include both Brady (actual innocence) and Giglio (impeachment)
material. The Supreme Court has thus far sanctioned only the Giglio waivers, and that was in a
pre-Lafler case. n72 Perhaps with the Court's new acknowledgment that the plea negotiation is
the criminal justice system, this holding will be re-examined. In the meantime, the government's
demand for these waivers continues unabated. For example, in my home jurisdiction, the
Western District of Texas, such waivers became standard for all agreements about a year ago. n73
Nationwide, the practice of demanding discovery waivers is mixed. I entered into a Cooperation
Agreement with the United States Sentencing Commission to examine all plea agreements
nationwide that contained pleas to arson, carjacking, and/or robbery entered between January
2008 and December 2010. n74 My team's preliminary examination of federal plea agreements of
all arson cases between 2008 and 2010 and a random sampling of robbery cases between 2006
and 2010 revealed that about twenty-five percent included such a waiver. n75 This number was
right in line with my guess, based upon the unscientific method of calling the twelve or so former
students of mine who are now AUSAs around the country and asking them about the practice in
their offices. Some of the agreements we coded from the Commissioner's database include
waivers not only of FRCP 16 and Brady and Giglio, but also rights under the Freedom of
Information Act and the Privacy Act of 1974. n76 As of this writing, Main Justice has not taken a
177
position on their propriety Discovery waivers are particularly harsh on the innocent, for
whom such favorable evidence might exist. It is perhaps for this reason that the official
Department of Justice position is to no longer request that those pleading guilty waive their rights
under the Innocence Protection Act of 2004 to DNA testing. n77 Although my own research at
the United States Sentencing Commission established that 28.8% of all robbery plea agreements
contained either a waiver of the right to request DNA testing, explicitly allowed the government
to destroy DNA samples, or both, for the most part these pleas were entered before Attorney
General Holder changed the Department's position on this matter. n78 A DNA waiver, like the
Brady waivers and the appeal waivers, are boilerplate, so a defense attorney cannot bargain
around such a waiver for a client who she believes might be innocent. Defense attorneys can
demand no concessions in exchange for agreeing to the waivers.
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Incarceration Impacts
Defendants are pressured to plea, incarcerated, and then discriminated against
for the rest of their lives
The structure of mass incarceration is described in some detail in chapter 2, with a focus on the
War on Drugs. Few legal rules meaningfully constrain the police in the drug war, and enormous
financial incentives have been granted to law enforcement to engage in mass drug arrests
through military-style tactics. Once swept into the system, one’s chances of ever being truly free
are slim, often to the vanishing point. Defendants are typically denied meaningful legal
representation, pressured by the threat of lengthy sentences into a plea bargain, and then
placed under formal control—in prison or jail, on probation or parole. Upon release, ex-
offenders are discriminated against, legally, for the rest of their lives, and most will eventually
return to prison. They are members of America’s new undercaste.Alexander, Michelle. The New
Jim Crow (p. 17). The New Press. Kindle Edition.
Once incarcerated, people cannot lead normal lives, even once released
Chapter 4 considers how the caste system operates once people are released from prison. In
many respects, release from prison does not represent the beginning of freedom but instead a
cruel new phase of Chapter 4 considers how the caste system operates once people are
released from prison. In many respects, release from prison does not represent the beginning of
freedom but instead a cruel new phase of Alexander, Michelle. The New Jim Crow (p. 17). The
New Press. Kindle Edition.
Mass incarceration crushes voting rights
The message communicated by felon disenfranchisement laws, policies, and bureaucratic

procedures is not lost on those, such as Clinton Drake, who are effectively barred from voting
for life.55 Drake, a fifty-five-year-old African American man in Montgomery, Alabama, was
arrested in 1988 for possession of marijuana. Five years later, he was arrested again, this time
for having about $10 worth of the drug on him. Facing between ten and twenty years in prison
as a repeat offender, Drake, a Vietnam veteran and, at the time, a cook on a local air force base,
took his public defender’s advice and accepted a plea bargain. Under the plea agreement, he
would “only” have to spend five years behind bars. Five years for five joints. Once released,
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Drake found he was forbidden by law from voting until he paid his $900 in court costs—an
impossible task, given that he was unemployed and the low-wage jobs he might conceivably find
would never allow him to accumulate hundreds of dollars in savings. For all practical purposes,
he would never be able to vote again. Shortly before the 2004 presidential election, he said in
despair: I put my life on the line for this country.To me, not voting is not right; it led to a lot of
frustration, a lot of anger. My son’s in Iraq. In the army just like I was. My oldest son, he fought
in the first Persian Gulf conflict. He was in the Marines. This is my baby son over there right now.
But I’m not able to vote. They say I owe $900 in fines. To me, that’s a poll tax. You’ve got to pay
to vote. It’s “restitution,” they say. I came off parole on October 13, 1999, but I’m still not
allowed to vote. Last time I voted was in ’88. Bush versus Dukakis. Bush won. I voted for
Dukakis. If it was up to me, I’d vote his son out this time too. I know a lot of friends got the same
cases like I got, notable to vote. A lot of guys doing the same things like I was doing. Just
marijuana. They treat marijuana in Alabama like you committed treason or something. I was on
the 1965 voting rights march from Selma. I was fifteen years old. At eighteen, I was in Vietnam
fighting for my country. And now? Unemployed and they won’t allow me to vote.56 Drake’s
vote, along with the votes of millions of other people labeled felons, might have made a real
difference in 2004. There is no doubt their votes would have changed things in 2000. Following
the election, it was widely reported that, had the 600,000former felons who had completed
their sentence in Florida been allowed to vote, Al Gore would have been elected president of
the United States rather than George W. Bush.57 Four years later, voter registration workers in
the South encountered scores of ex-offenders who were reluctant to register to vote, even if
they were technically eligible, because they were scared to have any contact with governmental
authorities. Many on welfare were worried that any little thing they did to bring attention to
themselves might put their food stamps at risk. Others had been told by parole and probation
officers that they could not vote, and although it was not true, they believed it, and the
newsspread like wildfire. “How long you think it take if someone tells you you can’t vote before
it spreads?” asked one ex-offender. “It’s been years and years people telling you you can’t vote.
You live in a slum, you’re not counted.”58Alexander, Michelle. The New Jim Crow (p. 160). The
New Press. Kindle Edition.
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Racism Impacts -- Consequential

Racism necessitates genocide and multiple forms of oppression.
Katz 97 - Katheryn Katz, Professor of Law, 1997, "The Clonal Child: Procreative Liberty and
Asexual Reproduction," Lexis-Nexis
It is undeniable that throughout human history dominant and oppressive groups have
committed unspeakable wrongs against those viewed as inferior. Once a person (or a people)
has been characterized as sub-human, there appears to have been no limit to the cruelty that
was or will be visited upon him. For example, in almost all wars, hatred towards the enemy was
inspired to justify the killing and wounding by separating the enemy from the human race, by
casting them as unworthy of human status. This same rationalization has supported: genocide,
chattel slavery, racial segregation, economic exploitation, caste and class systems, coerced
sterilization of social misfits and undesirables, unprincipled medical experimentation, the
subjugation of women, and the social Darwinists' theory justifying indifference to the poverty
and misery of others.
Racism causes structural violence, leading to genocide.

Vorster 2 - J.M. Vorster 2 (Prof. of Ethics, writer on religious fundamentalism and human
rights, Advisor to the U.N. Human Rights Council, “Racism, xenophobia, and Human Rights,” The
Ecumenical Review
Although these three causes of racism can be logically distinguished, they are mostly inter-
related. Ideology can be the basis of fear, and greed can be justified by ideology and even fear.
One of the major manifestations of racism is structural violence. State-organized genocide was
a well-known phenomenon in the centuries of colonialism. Several nations disappeared
altogether, or were reduced to tiny minorities, during the 19th century by the United States and
by European powers in Africa, Latin America, Australia and New Zealand. (16) Nowadays the
international community witnesses state organized "ethnic" cleansing in Central Africa and
Eastern Europe. (17) This "ethnic cleansing" includes methods such as deportation, terror and
so-called "legal forms" of exclusion from the state concerned. However, structural violence
based on racism can have a more subtle form than state-organized terror and genocide. The
philosophy of liberation proved in the 1960s that systems--even democratic systems--can
become inherently violent. (18) In the maintenance of law and order, and sometimes even
under the guise of human rights, a political and economic structure can exert violence to its
subjects or a group of them. This usually happens when the system is one-dimensional, that is,
when the system controls all spheres of life. The South African system in the period 1948-94 is a
good example of a one-dimensional state. All spheres of life (even morality, sexuality and
marital life) were controlled by the state. This provides the authorities with the means to
discriminate in a "legitimate" way by introducing social stratification. This concept, and the usual
pattern of its development, require further reflection. Social stratification is a system of
legitimated, structured social inequality in which groups receive disproportionate amounts of
the society's wealth, power and prestige and are socially ranked accordingly. (19) Social
stratification flows from the supposition that society consists of irreconcilable groups and the
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premise that a unitary government with a general franchise cannot govern these groups. The
maintenance of division is, according to this view, necessary for good and orderly government.
The viewpoint in South Africa since colonization in the 17th century was that whites and blacks
should be kept "apart" in order to have peace and prosperity for all. In this case the dividing
principle was along racial lines, but it can also, in other cases and regions, be along ethnic,
cultural, linguistic or religious lines. This premise denies the fact that pluralism can be
maintained in a unitary state (in South Africa a unitary state was seen as a danger for white and
indigenous futures), and is based on the conviction that nation-states are the only way to deal
with pluralism. The dialectical principle must lead to the "us-them" social attitude and
structure, with (as has been proven historically) total division and conflict developing according
to a particular pattern. In the "us-zone" the uniqueness of the own group is idolized, and
maintenance of one's own uniqueness is then of absolute importance. To stimulate the "we
feeling" and maintain a strong sense of solidarity, a community will start with a reconstruction
of its own history. (20)
People of Color are the victims of perpetual holocausts.

Omolade, 89 - (Barbara, 1989. 'We Speak for the Planet', in Adrienne Harris and Ynestra King
(eds.), Rocking the Ship of State: Toward a Feminist Peace Politics, pp. 171-89.Boulder,
CO: Westview Press)//AK
People of color were and are victims of holocausts-that is, of great and widespread destruction,
usually by fire. The world as we knew and created it was destroyed in a continual scorched earth
policy of the white man. The experience of Jews and other Europeans under the Nazis can teach
us the value of understanding the totality of destructive intent, the extensiveness of torture,
and the demonical apparatus of war aimed at the human spirit. A Jewish father pushed his
daughter from the lines of certain death at Auschwitz and said, "You will be a remembrance--
You tell the story--You survive." She lived. He died. Many have criticized the Jews for forcing
non-Jews to remember the 6 million Jews who died under the Nazis and for etching the names
Auschwitz and Buchenwald, Terezin and Warsaw in our minds. Yet as women of color, we, too,
are "remembrances" of all the holocausts against the people of the world. We must remember
the names of concentration camps such as Jesus, Justice, Brotherhood, and Integrity, ships that
carried millions of African men, women, and children chained and brutalized across the ocean to
the "New World." We must remember the Arawaks, the Taino, the Chickasaw, the Choctaw, the
Narragansett, the Montauk, the Delaware, and the other Native American names of thousands
of U.S. towns that stand for tribes of people who are no more. We must remember the
holocausts visited against the Hawaiians, the aboriginal peoples of Australia, the Pacific Island
peoples, and the women and children of Hiroshima and Nagasaki. We must remember the
slaughter of men and women at Sharpeville, the children of Soweto, and the men of Attica. We
must never, ever, forget the children disfigured, the men maimed, and the women broken in our
holocausts-we must remember the names, the numbers, the faces, and the stories and teach
them to our children and our children's children so the world can never forget our suffering and
our courage. Whereas the particularity of the Jewish holocaust under the Nazis is over, our
holocausts continue. We are the madres locos (crazy mothers) in the Argentinian square silently
demanding news of our missing kin from the fascists who rule. We are the children of El
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Salvador who see our mothers and fathers shot in front of our eyes. We are the Palestinian and
Lebanese women and children overrun by Israeli, Lebanese, and U.S. soldiers. We are the
women and children of the bantustans and refugee camps and the prisoners of Robbin Island.
We are the starving in the Sahel, the poor in Brazil, the sterilized in Puerto Rico. We are the
brothers and sisters of Grenada who carry the seeds of the New Jewel Movement in our hearts,
not daring to speak of it with our lips—yet.
Peace is not the absence of a nuclear conflict for the comfort of the white
middle class—People of Color face the holocaust daily
Omolade, 89 - (Barbara, 1989. 'We Speak for the Planet', in Adrienne Harris and Ynestra King
(eds.), Rocking the Ship of State: Toward a Feminist Peace Politics, pp. 171-89.Boulder,
CO: Westview Press)//AK
Pacifists such as Martin Luther King, Jr. and Mahatma Gandhi who have used nonviolent
resistance charged that those who used violence to obtain justice were just as evil as their
oppressors. Yet all successful revolutionary movements have used organized violence. This is
especially true of national liberation movements that have obtained state power and
reorganized the institutions of their nations for the benefit of the people. If men and women in
South Africa do not use organized violence, they could remain in the permanent violent state of
the slave. Could it be that pacifism and nonviolence cannot become a way of life for the
oppressed? Are they only tactics with specific and limited use for protecting people from further
violence? For most people in the developing communities and the developing world consistent
nonviolence is a luxury; it presumes that those who have and use nonviolent weapons will
refrain from using them long enough for nonviolent resisters to win political battles. To survive,
peoples in developing countries must use a varied repertoire of issues, tactics, and approaches.
Sometimes arms are needed to defeat apartheid and defend freedom in South Africa;
sometimes nonviolent demonstrations for justice are the appropriate strategy for protesting the
shooting of black teenagers by a white man, such as happened in New York City. Peace is not
merely an absence of 'conflict that enables white middleclass comfort, nor is it simply resistance
to nuclear war and war machinery. The litany of "you will be blown up, too" directed by a white
man to a black woman obscures the permanency and institutionalization of war, the violence
and holocaust that people of color face daily. Unfortunately, the holocaust does not only refer
to the mass murder of Jews, Christians, and atheists during the Nazi regime; it also refers to the
permanent institutionalization of war that is part of every fascist and racist regime. The
holocaust lives. It is a threat to world peace as pervasive and thorough as nuclear war.
Racism make nuclear war inevitable

KOVEL 1988 (Joel, Distinguished Professor of Social Studies at Bard University, White Racism: A Psychohistory, 1988, p. xxix-xxx)
As people become dehumanized, the states become more powerful and warlike. Metaracism signifies the triumph of
technical reasoning in the racial sphere. The same technocracy applies to militarization in general, where it has led to the inexorable drive toward
There is an indubitable although largely obscure,
thermonuclear weaponry and the transformation of the state into the nuclear state.
link between the inner dynamic of a society, including its racism, and the external projection of
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social violence. Both involve actions taken toward an Other, a term we may define as the negation of the socially
affirmed self. Communist, black, Jew—all have been Other to the white West. The Jew has, for a while at least, stepped
outside of the role thanks to the integration of Israel within the nations of the West, leaving the black and the Communist to
suffer the respective technocratic violences of metaracism and thermonuclear deterrence. Since the initial writing of WHITE RACISM, these closely
linked phenomena have grown enormously. Of course, there is a major, cataclysmic difference between the types of technocratic domination.
Metaracism can be played out quite a while longer. Indeed, since it is a racism that proceeds on the basis of anti-racism, it appears capable of a vastly
greater degree of integration than either dominative or aversive racism, at least under the firmly entrenched conditions of late capitalist society.
Thermonuclear deterrence, on the other hand, has already decayed into the apocalyptic logic of first-
strike capability (or counterforce means of pursing nuclear war), which threatens to put an end to history itself.
Thus the nuclear crisis is now the leading item on the global agenda. If it is not resolved civilization will be exterminated while if it is resolved, the
terms of society and the state will undoubtedly be greatly altered. This will of course profoundly affect the racial situation. At the same time the
disposition of racism will play a key role in the outcome of the nuclear crisis. For one thing, the effectiveness
of an antinuclear movement will depend heavily on its ability to involve people of all races—in contrast to its present makeup, which is almost entirely
white and middle class. To achieve such mobilization and carry it through, however, the movement will have to be able to make the linkages between
militarization and racial oppression very clearly and forcefully. For if the third, and last world war becomes thermonuclear, it will most likely be in a
place defined by racial oppositions.
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Racism Impacts -- Moral

No moral order is possible while racism is tolerated—ethics are meaningless
without a prior rejection of it
Memmi 2K (Albert, Professor Emeritus of Sociology @ U of Paris, Naiteire, Racism, Translated by Steve Martinot, p. 163-165)
The struggle against racism will be long, difficult, without intermission, without remission,
probably never achieved. Yet, for this very reason, it is a struggle to be undertaken without
surcease and without concessions. One cannot be indulgent toward racism; one must not even let
the monster in the house, especially not in a mask. To give it merely a foothold means to
augment the bestial part in us and in other people, which is to diminish what is human. To
accept the racist universe to the slightest degree is to endorse fear, injustice, and violence. It is
to accept the persistence of the dark history in which we still largely live. it is to agree that the outsider will always be a possible
victim (and which man is not himself an outsider relative to someone else?. Racism illustrates, in sum, the inevitable
negativity of the condition of the dominated that is, it illuminates in a certain sense the entire human condition. The
anti-racist struggle, difficult though it is, and always in question, is nevertheless one of the prologues to the ultimate passage from
animosity to humanity. In that sense, we cannot fail to rise to the racist challenge. However, it remains true that one’s moral conduit
only emerges from a choice: one has to want it. It is a choice among other choices, and always debatable in its
foundations and its consequences. Let us say, broadly speaking, that the choice to conduct oneself morally is the condition for the
establishment of a human order, for which racism is the very negation. This is almost a redundancy. One cannot found a
moral order, let alone a legislative order, on racism, because racism signifies the exclusion of
the other, and his or her subjection to violence and domination. From an ethical point of view, if one can
deploy a little religious language, racism is ‘the truly capital sin. It is not an accident that almost all of humanity’s spiritual
traditions counsels respect for the weak, for orphans, widows, or strangers. It is not just a question of theoretical morality and
disinterested commandments. Such unanimity in the safeguarding of the other suggests the real utility of such sentiments. All things
considered, we have an interest in banishing injustice, because injustice engenders violence and
death. Of course, this is debatable. There are those who think that if one is strong enough, the assault on and oppression of others
is permissible. Bur no one is ever sure of remaining the strongest. One day, perhaps, the roles will be reversed. All unjust
society contains within itself the seeds of its own death. It is probably smarter to treat others with respect so
that they treat you with respect. “Recall.” says the Bible, “that you were once a stranger in Egypt,” which means both that y ou ought
to respect the stranger because you were a stranger yourself and that you risk becoming one again someday. It is an ethical and a
practical appeal—indeed, it is a contract, however implicit it might be. In
short, the refusal of racism is the
condition for all theoretical and practical morality because, in the end, the ethical choice
commands the political choice, a just society must be a society accepted by all. If this
contractual principle is not accepted, then only conflict, violence, and destruction will be our lot.
If it is accepted, we can hope someday to live in peace. True, it is a wager, but the stakes are
irresistible.
There is no value to life in a racist society.

Mohan ‘93 - (Brij, Professor at LSU, Eclipse of Freedom: The World of Oppression, Praeger
Publishers p. 3-4)
Metaphors of existence symbolize variegated aspects of the human reality. However, words can
be apocalyptic. "There are words," de Beauvoir writes, "as murderous as gas chambers" (1968:
30). Expressions can be unifying and explosive; they portray explicit messages and implicit
agendas in human affairs and social configurations. Manifestly the Cold War is over. But the
world is not without nuclear terror. Ethnic strife and political instabilities in the New World
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Order -- following the dissolution of the Soviet Union -- have generated fears of nuclear
terrorism and blackmail in view of the widening circle of nuclear powers. Despite encouraging
trends in nuclear disarmament, unsettling questions, power, and fear of terrorism continue to
characterize the crisis of the new age which is stumbling at the threshold of the twenty-first
century. The ordeal of existence transcends the thermonuclear fever because the latter does
not directly impact the day-to-day operations if the common people. The fear of crime,
accidents, loss of job, and health care on one hand; and the sources of racism, sexism, and
ageism on the other hand have created a counterculture of denial and disbelief that has
shattered the façade of civility. Civilization loses its significance when its social institutions
become counterproductive. It is this aspect of the mega-crisis that we are concerned about
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Racism Outweighs Other Impacts

Racism transcends physical murder, it destroys the spirit.
Williams 87 – Associate Professor of Law at City University of New York
[Patricia, “Spirit-murdering the messenger: the discourse of finger-pointing as the law’s
response to racism,” University of Miami Law Review, Sep, 42 U. Miami L. Rev. 127,
http://repository.law.miami.edu/cgi/viewcontent.cgi?article=2092&context=umlr
The second purpose of this article is to examine racism as a crime, an offense so deeply painful
and assaultive as to constitute something I call "spirit-murder." Society is only beginning to recognize that
racism is as devastating, as costly, and as psychically obliterating as robbery or assault; indeed
they are often the same. Racism resembles other offenses against humanity whose structures are so deeply embedded in culture as to prove extremely
resistant to being recognized as forms of oppression. 7 It can be as difficult to prove as [*130] child abuse or rape, where the victim is forced to convince others that he or she
was not at fault, or that the perpetrator was not just "playing around." As in rape cases, victims of racism must prove that they did not distort the circumstances, misunderstand
the intent, or even enjoy it. On October 29, 1984, Eleanor Bumpurs, a 270-pound, arthritic, sixty-seven year old woman, was shot to death while resisting eviction from her
apartment in the Bronx. She was $ 98.85, or one month, behind in her rent. 8 New York City Mayor Ed Koch and Police Commissioner Benjamin Ward described the struggle
preceding her demise as involving two officers with plastic shields, one officer with a restraining hook, another officer with a shotgun, and at least one supervising officer. All of
the officers also carried service revolvers. According to Commissioner Ward, during the course of the attempted eviction Mrs. Bumpurs escaped from the restraining hook [*131]
twice and wielded a knife that Commissioner Ward says was "bent" on one of the plastic shields. At some point, Officer Stephen Sullivan, the officer positioned farthest away
from her, aimed and fired his shotgun. It is alleged that the blast removed half of her hand, so that, according to the Bronx District Attorney's Office, "[I]t was anatomically
impossible for her to hold the knife." 9 The officer pumped his gun and shot again, making his mark completely the second time around. 10 In the two and one-half year wake of
this terrible incident, controversy raged as to whether Mrs. Bumpurs ought to have brandished a knife and whether the officer ought to have fired his gun. In February 1987, a
New York Supreme Court justice found Officer Sullivan not guilty of manslaughter. 11 The case centered on a very narrow issue of language pitted against circumstance. District
Attorney Mario Merola described the case as follows: "Obviously, one shot would have been justified. But if that shot took off part of her hand and rendered her defenseless,
whether there was any need for a second shot, which killed her, that's the whole issue of whether you have reasonable force or excessive force." 12 My intention in the
following analysis is to underscore the significant task facing judges and lawyers in undoing institutional descriptions of what is "obvious" and what is not, and in resisting the
general predigestion of evidence for jury consumption. Shortly after Mr. Merola's statement, Officer Sullivan's attorney, Bruce Smiry, expressed eagerness to try the case before
a jury. 13 Following the heavily publicized attack in Howard Beach, however, he favored a bench trial. In explaining his decision to request a nonjury trial, he stated: I think a
judge will be much more likely than a jury to understand the defense that the shooting was justified. . . . The average lay person might find it difficult to understand why the
police were there in the first place, and why a shotgun was employed. . . . Because of the climate now in the city, I don't want people perceiving this as a racial case. 14 Since
1984, Mayor Koch, Commissioner Ward, and a host of [*132] other city officials repeatedly have described the shooting of Mrs. Bumpurs as completely legal. 15 At the same
time, Commissioner Ward has admitted publicly that Mrs. Bumpurs should not have died. Mayor Koch admitted that her death was the result of "a chain of mistakes and
circumstances" that came together in the worst possible way, with the worst possible circumstances. 16 Commissioner Ward admitted that the officers could have waited for
Mrs. Bumpurs to calm down, and that they could have used teargas or mace instead of gunfire. According to Commissioner Ward, however, these observations are made with
hindsight. As to whether this shooting of a black woman by a white police officer had racial overtones, he stated that he had "no evidence of racism." 17 Commissioner Ward
pointed out that he is sworn to uphold the law, which is "inconsistent with treating blacks differently," 18 and that the shooting was legal because it was within the code of
police ethics. 19 Finally, city officials have resisted criticism of the police department's handling of the incident by remarking that "outsiders" do not know all of the facts and do
not understand the pressure under which officers labor. The root of the word "legal" is the Latin word lex, which means law in a fairly concrete sense -- law as we understand it
when we refer to written law, codes, and systems of obedience. 20 The word lex does not include the more abstract, ethical dimension of law that contemplates the purposes of
rules and their effective implementation. This latter meaning is contained in the Latin word jus, from which we derive the word "justice." 21 This semantic distinction is not
insignificant. The word of law, whether statutory or judicial, is a subcategory of the underlying social motives and beliefs from which it is born. It is the technical embodiment of
attempts to order society according to a consensus of ideals. When society loses sight of those ideals and grants obeisance to words alone, law becomes sterile and formalistic;
lex is applied without jus and is therefore unjust. The result is compliance [*133] with the letter of the law, but not the spirit. A sort of punitive literalism ensues that leads to a
high degree of thoughtless conformity. This literalism has, as one of its primary underlying values, order -- whose ultimate goal may be justice, but whose immediate end is the
ordering of behavior. Living solely by the letter of the law means living without spirit; one can do anything as long as it comports with the law in a technical sense. The cynicism
or rebelliousness that infects one's spirit, and the enthusiasm or dissatisfaction with which one conforms is unimportant. Furthermore, this compliance is arbitrary; it is
inconsistent with the will of the conformer. The law becomes a battleground of wills. The extent to which technical legalism obfuscates and undermines the human motivations
that generate our justice system is the real extent to which we as human beings are disenfranchised. Cultural needs and ideals change with the momentum of time; redefining
our laws in keeping with the spirit of cultural flux keeps society alive and humane. In the Bumpurs case, the words of the law called for nonlethal alternatives first, but allowed
some officer discretion in determining which situations are so immediately life endangering as to require the use of deadly force. 22 This discretionary area was presumably the
basis for the claim that Officer Sullivan acted legally. The law as written permitted shooting in general, and therefore, by extension of the city's interpretation of this law, it
would be impossible for a police officer ever to shoot someone in a specifically objectionable way. [*134] If our laws are thus piano-wired on the exclusive validity of literalism, if
they are picked clean of their spirit, then society risks heightened irresponsibility for the consequences of abominable actions. Accordingly, Jonathan Swift's description of
lawyers weirdly and ironically comes to life: "[T]here was a Society of Men among us, bred up from their Youth in the Art of proving by words multiplied for the Purpose, that
White is Black and Black is White, according as they are paid. To this Society all the rest of the People are Slaves." 23 We also risk subjecting ourselves to such absurdly empty
rhetoric as Commissioner Ward's comments to the effect that both Mrs. Bumpurs' death and racism were unfortunate, while stating "but the law says . . . ." 24 Commissioner
Ward's sentiments might as well read: "The law says . . . and therefore the death was unfortunate but irremediable; the law says . . . and therefore there is little that can be done
about racism." The law thus becomes a shield behind which to avoid responsibility for the human repercussions of both governmental and publicly harmful private activity. 25 A
related issue is the degree to which much of the criticism of the police department's handling of this case was devalued as "noisy" or excessively emotional. It is as though
passionate protest were a separate crime, a rudeness of such dimension as to defeat altogether any legitimacy of content. We as lawyers are taught from the moment we enter
law school to temper our emotionalism and quash our idealism. We are taught that heartfelt instincts subvert the law and defeat the security of a well-ordered civilization,
whereas faithful adherence to the word of law, to stare decisis and clearly stated authority, would as a matter of course lead to a bright, clear world like the Land of Oz, in which
those heartfelt instincts would be preserved. Form is exalted over substance, and cool rationales over heated feelings. But we should not be ruled exclusively by the cool
formality of language or by emotions. We must be ruled by our complete selves, by the intellectual and emotional content of our words. Governmental representatives must
hear the full range of legitimate concerns, no matter how indelicately expressed or painful they may be to hear. [*135] But undue literalism is only one type of sleight of tongue
in the attainment of meaningless dialogue. Mayor Koch, Commissioner Ward, and Officer Sullivan's defense attorneys have used overgeneralization as an effective rhetorical
complement to their avoidance of the issues. For example, allegations that the killing was illegal and unnecessary, and should therefore be prosecuted, were met with responses
such as, "The laws permit police officers to shoot people." 26 "As long as police officers have guns, there will be unfortunate deaths." 27 "The conviction rate in cases like this is
very low." 28 The observation that teargas would have been an effective alternative to shooting Mrs. Bumpurs drew the dismissive reply that "there were lots of things they
could have done." 29 Privatization of response as a justification for public irresponsibility is a version of the same game. Honed to perfection by President Reagan, this version
holds up the private self as indistinguishable from the public "duty and power laden" self. Public officials respond to commentary by the public and the media as though it were
187
meant to hurt private, vulnerable feelings. Trying to hold a public official accountable while not hurting his feelings is a skill the acquisition of which would consume time better
spent on almost any conceivable task. Thus, when Commissioner Ward was asked if the internal review board planned to discipline Officer Sullivan, many seemed disposed to
accept his response that while he was personally very sorry she had died, he could not understand why the media was focusing on him so much. "How many other police
commissioners," he asked repeatedly, "have gotten as much attention as I have?" 30 Finally, a most cruel form of semantic slipperiness infused Mrs. Bumpurs' death from the
beginning. It is called victim responsibility. 31 It is the least responsive form of dialogue, yet apparently the [*136] easiest to accept as legitimate. All these words, from
Commissioner Ward, from the Mayor's office, from the media, and from the public generally, have rumbled and resounded with the sounds of discourse. We want to believe
that their symmetrical, pleasing structure is the equivalent of discourse. If we are not careful, we will hypnotize ourselves into believing that it is discourse. In the early morning
hours of December 20, 1986, three young black men left their stalled car on Cross Bay Parkway, in the New York City borough of Queens, and went to look for help. They walked
into the neighborhood of Howard Beach, entered a pizzeria, ordered pizzas, and sat down to eat. An anonymous caller to the police reported their presence as "black
troublemakers." A patrol car came, found no trouble, and left. After the young men had eaten, they left the pizzeria and were immediately surrounded by a group of eight to ten
white teenagers who taunted them with racial epithets. The white youths chased the black men for about three miles, catching them at several points and beating them
severely. One of the black men died as a result of being struck by a car as he tried to flee across a highway. Another suffered permanent blindness in one eye. 32 In the
extremely heated public controversy that ensued, as much attention centered on the community of Howard Beach as on the assailants themselves. A veritable Greek chorus
formed, comprised of the defendants' lawyers and resident after resident after resident of Howard Beach, all repeating and repeating and repeating that the mere presence of
three black men in that part of town at that time of night was reason enough to drive them out. "They had to be starting trouble." 33 "We're a strictly white neighborhood." 34
"What were they doing here in the first place?" 35 [*137] Although the immensely segregationist instincts behind such statements may be fairly evident, it is worth making
explicit some of the presuppositions behind such ululations. Everyone who lives here is white. No black could live here. No one here has a black friend. No white would employ a
black here. No black is permitted to shop here. No black is ever up to any good. These presuppositions themselves are premised on lethal philosophies of life. "Are we supposed
to stand around and do nothing while these blacks come into our area and rob us?" 36 one woman asked a reporter in the wake of the Howard Beach attack. A twenty year old,
who had lived in Howard Beach all of his life, said, "We ain't racial. . . . We just don't want to get robbed." 37 The hidden implication of these statements is that to be safe is not
to be sorry, and that to be safe is to be white and to be sorry is to be associated with blacks. Safety and sorrow, which are inherently alterable and random, are linked to
inalterable essences. The expectation that uncertain conditions are really immutable is a formula for frustration; it is a belief that feeds a sense of powerlessness. The rigid
determinism of placing in the disjunctive things that are not in fact disjunctive is a set up for betrayal by the very nature of reality. The national repetition that white
neighborhoods are safe and blacks bring sorrow is an incantation of powerlessness. And, as with the upside-down logic of all irrational incantations, it imports a concept of white
safety that almost necessarily endangers the lives as well as the rights of blacks. It is also an incantation of innocence and guilt, much related to incantations that affirmative
action programs allow presumably "guilty" blacks to displace "innocent" whites. 38 (Even assuming that "innocent whites" were being displaced by blacks, does that make
[*138] blacks less innocent in the pursuit of education and jobs? If anything, are not blacks more innocent in the scheme of discrimination?) In fact, in the wake of the Howard
Beach incident, the police and the press rushed to serve the public's interest in the victims' unsavory "guilty" dispositions. They overlook the fact that racial slurs and attacks
"objectif[y] people -- the incident could have happened to any black person who was there at that time and place. This is the crucial aspect of the Howard Beach affair that is
now being muddied in the media. Bringing up [defendants' past arrest records] is another way of saying, 'He was a criminal who deserved it.'" 39 Thus, the game of victim
responsibility described above is itself a slave to society's stereotypes of good and evil. It does no good, however, to turn race issues into contests for some Holy Grail of
innocence. In my youth, segregation and antimiscegenation laws were still on the books in many states. During the lifetimes of my parents and grandparents, and for several
hundred years before them, laws prohibited blacks from owning property, voting, and learning to read or write. Blacks were, by constitutional mandate, outlawed from the
hopeful, loving expectations that being treated as a whole, rather than three-fifths of a human being can bring. When every resource of a wealthy nation is put to such
destructive ends, it will take more than a few generations to mop up the mess. 40 [*139] We have all inherited that legacy, whether new to this world or new to this country. It
survives as powerfully and invisibly reinforcing structures of thought, language, and law. Thus, generalized notions of innocence and guilt have little place in the struggle for
transcendence; there is no blame among the living for the dimension of this historic crime, this national tragedy. 41 There is, however, responsibility for never forgetting one
another's histories, and for making real the psychic obliteration which lives on as a factor in shaping relations, not just between blacks and whites, 42 or blacks and blacks, 43 but
also between whites and whites. Whites must consider how much this history has projected onto blacks the blame for all criminality, and for all of society's ills. It has become
the means for keeping white criminality invisible. 44 The attempt to split bias from violence has been this society's most enduring and fatal rationalization. Prejudice does hurt,
however, just as the absence of prejudice can nourish and shelter. Discrimination can repel and vilify, ostracize and alienate. White people [*140] who do not believe this should
try telling everyone they meet that one of their ancestors was black. I had a friend in college who having lived her life as a blonde, grey eyed white person, discovered that she
was one-sixteenth black. She began to externalize all the unconscious baggage that "black" bore for her: the self-hatred that is racism. She did not think of herself as a racist (nor
had I) but she literally wanted to jump out of her skin, shed her flesh, and start life over again. She confided in me that she felt "fouled" and "betrayed." She also asked me if I
had ever felt this way. Her question dredged from some deep corner of my suppressed memory the recollection of feeling precisely that, when at the age of three or so, some
white playmates explained to me that God had mixed mud with the pure clay of life in order to make me. In the Vietnamese language, "the word 'I' (toi) . . . means 'your
servant'; there is no 'I' as such. When you talk to someone, you establish a relationship." 45 Such a concept of "self" is a way of experiencing the other, ritualistically sharing the
other's essence, and cherishing it. In our culture, seeing and feeling the dimension of harm that results from separating self from "other" requires more work. 46 Very little in
our language or our culture encourages or reinforces any attempt to look at others as part of ourselves. With the imperviously divided symmetry of the marketplace, social costs
to blacks are simply not seen as costs to whites, 47 just as blacks do not share in the advances whites may enjoy. [*141] This structure of thought is complicated by the fact that
the distancing does not stop with the separation of the white self from the black other. In addition, the cultural domination of blacks by whites means that the black self is
placed at a distance even from itself, as in the example of blacks being asked to put themselves in the position of the white shopkeepers who view them. 48 So blacks are
conditioned from infancy to see in themselves only what others who despise them see. 49 It is true that conforming to what others see in us is every child's way of becoming
socialized. 50 It is what makes children in our society seem so gullible, so impressionable, so "impolitely" honest, so blindly loyal, and so charming to the ones they imitate. 51
Yet this conformity also describes a way of being that relinquishes the power of independent ethical choice. Although such a relinquishment can have quite desirable social
consequences, it also presumes a fairly homogeneous social context in which values are shared and enforced collectively. Thus, it is no wonder that western anthropologists and
ethnographers, for whom adulthood is manifested by the exercise of independent ethical judgment, so frequently denounce tribal cultures or other collectivist ethics as
"childlike." By contrast, our culture constructs some, but not all, selves to be the servants of others. Thus, some "I's" are defined as "your servant," some as "your master." The
struggle for the self becomes not a true mirroring of self-in-other, but rather a hierarchically-inspired series of distortions, where some serve without ever being served, some
master without ever being mastered, and almost everyone hides from this vernacular domination by clinging to the legally official definition of "I" as meaning "your equal." In
such an environment, relinquishing the power of individual ethical judgment to a collective ideal risks psychic violence, an obliteration of the self through domination by an all
powerful other. In such an environment, it is essential at some stage that the self be permitted to retreat into itself and make its own decisions with self-love and self-
confidence. What links child abuse, the mistreatment of [*142] women, and racism is the massive external intrusion into psyche that dominating powers impose to keep the self
from ever fully seeing itself. 52 Because the self's power resides in another, little faith is placed in the true self, that is, in one's own experiential knowledge. Consequently, the
power of children, women and blacks is actually reduced to the "intuitive," rather than the real; social life is necessarily based primarily on the imaginary. 53 Furthermore,
because it is difficult to affirm constantly with the other the congruence of the self's imagining what the other is really thinking of the self, and because even that correlative
effort is usually kept within very limited family, neighborhood, religious, or racial boundaries, encounters cease to be social and become presumptuous, random, and
disconnected. This peculiarly distancing standpoint allows dramas, particularly racial ones like Howard Beach, to unfold in scenarios weirdly unrelated to the incidents that
generated them. At one end of the spectrum is a laissez faire response that privatizes the self in order to remain unassailably justified. At the other end is a pattern that
generalizes individual or particular others into terrifyingly uncontrollable "domains" of public wilderness, against which proscriptive barriers must be built to protect the
eternally innocent self. The prototypical scenario of the privatized response is as follows: Cain: Abel's part of town is tough turf. 54 [*143] Abel: It upsets me when you say that;
you have never been to my part of town. As a matter of fact, my part of town is a leading supplier of milk and honey. 55 Cain: The news that I'm upsetting you is too upsetting
for me to handle. You were wrong to tell me of your upset because now I'm terribly upset. 56 Abel: I felt threatened first. Listen to me. Take your distress as a measure of my
own and empathize with it. Don't ask me to recant and apologize in order to carry this conversation further. 57 This type of discourse is problematic because Cain's challenge in
calling Abel's turf "tough" is transformed into a discussion of the care with which Abel challenges that statement. While there is certainly an obligation to be careful in
addressing others the obligation to protect the feelings of those others gets put above the need to protect one's own. The self becomes subservient to the other, with no
reciprocity, and the other becomes a whimsical master. Abel's feelings are deflected in deference to Cain's, and Abel bears the double burden of raising his issue properly and of
being responsible for its impact on Cain. Cain is rendered unaccountable for as long as this deflection continues because all the fault is assigned to Abel. Morality and
responsiveness thus become dichotomized as Abel drowns in responsibility for valuative quality control, while Cain rests on the higher ground of a value neutral zone. Caught in
conversations like this, blacks as well as whites will [*144] feel keenly and pressingly circumscribed. Perhaps most people never intend to be racist, oppressive, or insulting.
188
Nevertheless, by describing zones of vulnerability and by setting up fences of rigidified politeness, the unintentional exile of individuals as well as races may be quietly
accomplished. Another scenario of distancing self from the responsibility for racism is the invention of some great public wilderness of others. In the context of Howard Beach,
the specter against which the self must barricade itself is violent: seventeen year old, black males wearing running shoes and hooded sweatshirts. It is this fear of the
uncontrollable, overwhelming other that animates many of the more vengefully racist comments from Howard Beach, such as, "We're a strictly white neighborhood. . . . They
had to be starting trouble." 58 These statements set up angry, excluding boundaries. They also imply that the failure to protect and avenge is bad policy, bad statesmanship, and
an embarrassment. They raise the stakes beyond the unexpressed rage arising from the incident itself. Like the Cain and Abel example, the need to avenge becomes a separate
issue of protocol and etiquette -- not a loss of a piece of the self, which is the real cost of real tragedies, but a loss of self-regard. By self-regard, I do not mean self-concept as in
self- esteem; I mean that view of the self that is attained by the self stepping outside the self to regard and evaluate the self. It is a process in which the self is watched by an
imaginary other, a self-projection of the opinions of real others, where "I" means "your master" and where the designated other's refusal to be dominated is felt as personally
assaultive. Thus, the failure to avenge is felt as a loss of self-regard. It is a psychological metaphor for whatever trauma or original assault that constitutes the real loss to the
self. 59 It is therefore more abstract, more illusory, more constructed, and more invented. Potentially, therefore, it is less powerful than "real" assault, in that with effort it can
be unlearned as a source of vulnerability. This is the real message of the attempt to distinguish between prejudice and violence: names, as in the old "sticks and stones" ditty,
[*145] although undeniably and powerfully influential, can be learned or undone as motivation for future destructive action. 60 As long as they are not unlearned, however, the
exclusionary power of such free-floating emotions makes its way into the gestalt of prosecutorial and jury decisions and into what the law sees as crime, or as justified, provoked
or excusable. 61 Law becomes described and enforced in the spirit of our prejudices. 62 The following passage is a description of the arraignment of three of the white teenagers
who were involved in the Howard Beach beatings: The three defense lawyers also tried to case doubt on [the prosecutor's] account of the attack. The lawyers questioned why
the victims walked all the way to the pizza parlor if, as they said, their mission was to summon help for their car, which broke down three miles away. . . . At the arraignment, the
lawyers said the victims passed two all-night gas stations and several other pizza shops before they reached the one they entered. [*146] A check yesterday of area restaurants,
motels and gas stations listed in the Queens street directory found two eating establishments, a gas station and a motel that all said they were open and had working pay
phones on Friday night. A spokesman for the New York Telephone Company, Jim Crosson, said there are six outdoor pay telephones . . . on the way to the pizzeria. 63 In the first
place, lawyers must wonder what relevance this has. Does the answer to any of the issues the defense raised serve to prove that these black men assaulted, robbed, threatened
or molested these white men? Does it even prove that the white men reasonably feared such a fate? The investigation into the number of phone booths per mile does not
reveal why the white men would fear the black men's presence. Instead, it is relevant to prove that there is no reason a black man should walk or just wander around the
community of Howard Beach. This is not semantic detail; it is central to understanding burdensomeness of proof in such cases. It is this unconscious restructuring of burdens of
proof into burdens of white over black that permits people who say and who believe that they are not racist to commit and condone crimes of genocidal magnitude. It is easy to
rationalize this as linguistically technical, or as society's sorrow. As one of my students said, "I'm so tired of hearing the blacks say that society's done them wrong." Yet these
gyrations kill with their razor-toothed presumption. Lawyers are the modern wizards and medicine people who must define this innocent murderousness as crime. Additionally,
investigations into "closer" alternatives eclipse the possibility of other explanation. They assume that the young men were not headed for the subway (which was in fact in the
same direction as the pizzeria), and further, that black people must have documented reasons for excursioning into white neighborhoods and out of the neighborhoods to which
they are supposedly consigned. It is interesting to contrast the implicit requirement of documentation imposed on blacks walking down public streets in Howard Beach with the
implicit license of the white officers who burst into the private space of Mrs. Bumpurs' apartment. In the Bumpurs case, lawmakers consistently dismissed the availability of less
intrusive options as presumption and idle hindsight. 64 This dismissal ignored the fact that police officers have an actual burden of employing the least harmful alternatives. In
the context of Howard Beach, however, such an analysis invents and imposes a burden on nonresidents to stay [*147] out of strange neighborhoods. It implies harm in the
presence of those who do not specifically "own" something there. Both analyses skirt the propriety and necessity of public sector responsibility. Both redefine public
accountability in privatized terms. Whether those privatized terms act to restrict or expand accountability is dichotomized according to the race of the actors. Finally, this
factualized hypothesizing was part of a news story, not an editorial. "News," in other words, was reduced to hypothesis based on silent premises: they should have used the first
phone they encountered; they should have eaten at the first "eating establishment;" they should have gone into a gas station and asked for help; surely they should have had
the cash and credit cards to do any of the above or else not travel in strange neighborhoods. In elevating these to relevant issues, however, The New York Times did no more
than mirror what was happening in the courtroom. In an ill-fated trip to the neighborhood of Jamaica, in the borough of Queens, Mayor Koch attempted to soothe tensions by
asking a congregation of black churchgoers to understand the disgruntlement of Howard Beach residents about the interracial march by 1400 protesters through "their" streets.
He asked them how they would feel if 1400 white people took to the streets of the predominantly black neighborhood of Jamaica. 65 This remark, from the chief executive of
New York City, accepts and even advocates a remarkable degree of possessiveness about public streets. This possessiveness, moreover, is racially rather than geographically
bounded. In effect, Koch was pleading for the acceptance of the privatization of public space. This is the de facto equivalent of segregation. It is exclusion in the guise of deep-
moated private property "interests" and "values." In such a characterization, the public nature of the object of discussion, the street, is lost. 66 Mayor Koch's question suggests
that 1400 black people took to the streets of Howard Beach. In fact, the crowd was integrated -- blacks, browns, and whites, residents and nonresidents of Howard Beach.
Apparently, crowds in New York are subject to the unwritten equivalent of Louisiana's race statutes (which provide that 1/72 black [*148] ancestry renders a person black) and
to the Ku Klux Klan's "contamination by association" standard ("blacks and white-blacks" was how one resident of Forsythe County, Georgia described an interracial crowd of
protesters there). On the other hand, if Mayor Koch intended to direct attention to the inconvenience, noise, and pollution of such a crowd in those small streets, then I am
sympathetic. My sympathy is insignificant, however, compared to my recognition of the necessity and propriety of the protestors' spontaneous, demonstrative, peaceful
outpouring of rage, sorrow, and pain. If, however, Mayor Koch intended to ask blacks to imagine 1400 angry white people descending on a black community, then I agree, I
would be frightened. This image would also conjure up visions of 1400 hooded white people burning crosses, 1400 Nazis marching through Skokie, and 1400 cavalry men riding
into American Indian lands. These visions would inspire great fear in me, because of the possibility of grave harm to the residents. But there is a difference, and that is why the
purpose of the march is so important. That is why it is so important to distinguish mass protests of violence from organized hate groups that openly threaten violence. By failing
to make this distinction, Mayor Koch created the manipulative specter of unspecified mobs sweeping through homes in pursuit of vague and diffusely dangerous ends. From this
perspective, he appealed to thoughtlessness, to the pseudoconsolation of hunkering down and bunkering up against the approaching hoards, to a glacially overgeneralized view
of the unneighborhooded "public" world. Moreover, the Mayor's comments reveal that he is ignorant of the degree to which the black people have welcomed, endured, and
suffered white marchers through their streets. White people have always felt free to cruise through black communities and to treat them possessively. Most black
neighborhoods have existed only as long as whites have permitted them to exist. Blacks have been this society's perpetual tenants, sharecroppers, and lessees. Blacks went from
being owned by others, to having everything around them owned by others. In a civilization that values private property above all else, this effectuates a devaluation of
humanity, a removal of blacks not just from the market, but from the pseudospiritual circle of psychic and civic communion. As illustrated in the microcosm of my experience at
the store, 67 this limbo of disownedness keeps blacks beyond the pale of those who are entitled to receive the survival gifts of commerce, the [*149] property of life, liberty, and
happiness, whose fruits our culture places in the marketplace. In this way, blacks are positioned analogically to the rest of society, exactly as they were during slavery or Jim
Crow. 68 There is a subtler level to the enactment of this dispossession. The following story may illustrate more fully what I mean: Not long ago, when I first moved back to New
York after some twenty years, I decided to go on a walking tour of Harlem. The tour, which took place on Easter Sunday, was sponsored by the New York Arts Society, and except
for myself, was attended exclusively by young, white, urban, professional, real estate speculators. They were pleasant looking, with babies strapped to their backs and balloons
in their hands. They all seemed like very nice people. Halfway through the tour, the guide asked the group if they wanted to "go inside some churches." The guide added, "It'll
make the tour a little longer, but we'll probably get to see some services going on . . . Easter Sunday in Harlem is quite a show." A casual discussion ensued about the time that
this excursion might take. What astonished me was that no one had asked the people in the churches if they minded being stared at like living museums. I wondered what would
happen if a group of blue-jeaned blacks were to walk uninvited into a synagogue on Passover or St. Anthony's of Padua in the middle of High Mass. Just to peer, not pray. My
overwhelming instinct is that such activity would be seen as disrespectful. Apparently, the disrespect was invisible to this well-educated, affable group of people. They deflected
my observations with comments such as, "We just want to look"; "No one will mind"; "There's no harm intended." As well intentioned as they were, I was left with the
impression that no one existed for them whom their intentions could not govern. 69 Despite the lack of apparent malice in their demeanor, 70 it seemed to me that to live so
noninteractively is a liability [*150] as much as a luxury. To live imperviously to one's impact on others is a fragile privilege, which depends ultimately on the inability of others to
make their displeasure known. Reflecting on Howard Beach brought to mind a news story from my fragmentary grammar school recollections of the 1960's: a white man acting
out of racial motives killed a black man who was working for some civil rights organization or cause. The man was stabbed thirty-nine times, a number which prompted a radio
commentator to observe that the point was not just murder, but something beyond. What indeed was the point, if not murder? I wondered what it was that would not die,
which could not be killed by the fourth, fifth, or even tenth knife blow; what sort of thing that would not die with the body but lived on in the mind of the murderer. Perhaps, as
psychologists have argued, what the murderer was trying to kill was a part of his own mind's image, a part of himself and not a real other. After all, statistically and corporeally,
blacks as a group are poor, powerless, and a minority. It is in the minds of whites that blacks become large, threatening, powerful, uncontrollable, ubiquitous, and supernatural.
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death may occur long before the

There are certain societies that define the limits of life and death very differently than our own. For example,
body ceases to function, and under the proper circumstances, life may continue for some time after the body is carried to its grave. 71 These non-body-
bound, uncompartmentalized ideas recognize the power of spirit, or what we in our secularized society might describe as the dynamism of self as reinterpreted by the
part of ourselves is beyond the control of pure physical

perceptions of [*151] other. 72 These ideas comprehend the fact that a
will and resides in the sanctuary of those around us. A fundamental part of ourselves and of
our dignity is dependent upon the uncontrollable, powerful, external observers who
constitute society. 73 Surely a part of socialization ought to include a sense of caring responsibility for the images of others that are reposited within us. 74
Taking the example of the man who was stabbed thirty-nine times out of the context of our compartmentalized legal system, and considering it in the hypothetical framework of
a legal system that encompasses and recognizes morality, religion, and psychology, I am moved to see this act as not merely body murder but spirit-murder as well. I see it as
spirit-murder, only one of whose manifestations is racism -- cultural obliteration, prostitution, abandonment of the elderly and the homeless, and genocide are some of its other
. I see spirit-murder as no less than the equivalent of body murder. One of the reasons that I fear what I call
guises
its product is a system of formalized

spirit-murder, or disregard for others whose lives qualitatively depend on our regard, is that
distortions of thought. It produces social structures centered around fear and hate; it
provides a tumorous outlet for feelings elsewhere unexpressed. 75 For example, when Bernhard Goetz shot four black
teenagers in a New York City subway, an acquaintance of mine said that she could understand his fear because it is a "fact" that blacks commit most crimes. What impressed me,
beyond the factual inaccuracy of this statement, 76 was the reduction of Goetz' crime to "his fear," which I translate to mean her fear. The four teenage victims became all
blacks everywhere, and "most crimes" clearly meant that most blacks commit crimes.
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Racism Impacts -- Discrimination

Everyday White privilege oppressing Blacks, preventing an equal play field.
Bonilla-Silva 01 (Eduardo, PhD, professor of sociology at Duke University. “White Supremacy and Racism in the Post-Civil
Rights era” Page 195 Lynne Rienner Publisher 2001
The theory and analyses advanced here are an anathema to many whites (and to color-blind minorities as well as honorary whites).
Agreeing with my theory and substantive claims implies recognizing that all whites receive unearned benefits by virtue of being
white and thus develop “defensive beliefs.” Naysayers will rebuke my claims by arguing that they are not “racist,” by stating that I
am making a fictitious category- that of race- “real,” or by marshaling survey work showing whites’ tolerant racial attitudes or data
comparing the status of blacks in the past with their status today. Some may even suggest that blacks are “racist” too: or that the
racial gap in the United States is fundamentally shaped by blacks’ own cultural practices. Lastly, a group of commentators will point
out that my analysis is “divisive,” arguing, “Wouldn’t it make more sense to develop an argument based on class as the unifying
factor?” Although political disputes are never settled with data or rational arguments, I will attempt to answer each of the
counterarguments. First, from a structural point of view, race relations are not rooted in the balance between “good” (non-racist)
and “bad” (racist) whites or even in the struggle between “racist” actors (conscious of their racial interest) and “race militants”
(conscious of the need to oppose the racial status quo). The
reproduction of racial inequality transpires every
day through the normal operation of society. Like capitalists and men, whites have been able to
crystalize their victories in institutions and social practices. This implies that they do not need to be
individually active in the maintenance of racial domination. Instead by merely following the
everyday rituals of the postmodern, white-supremacist United States-living in a segregated neighborhood,
sending their children to segregated schools, interacting fundamentally with their racial peers, working in a mostly segregated job or
if in an integrated setting, maintaining superficial relation with the nonwhites etc.- they help reproduce the racial status quo. Of
course, this does not mean that some actors in any racialized social system are significantly more prejudiced than others. My point is
that the reproduction of white
supremacy does not depend on individual racist behavior. Second, although
all social categories are “constructed,” after they emerge they become real in their
consequences. The fact that race, as with all social categories, is fluid does not mean that it does
not become a social fact. Crying that you are not white, or male, or black, or female does not change the fact of your social
reality as white, male, black, or female. Even those who claim to be “race traitors” receive advantages (many of which are invisible
to them) just because of the racial uniform they wear every day. The mean streets
of the social world have a way of
letting you know rather quickly what you are rather than what you think or theorize you are. Hence, Tiger
Woods may insist that he is not black by Fuzzy Zeller’s joke when he won the Augusta Open was based on the stereotypes about
blacks and not on “Cablasasians.” Third, as I pointed out in Chapters 3 and 5, survey data on whites’ attitudes may be conveying
false sense of racial tolerance and harmony. The combination of socially acceptable speech and old questions that no longer tackle
our contemporary racial dilemmas has produced an artificial increase in racially tolerant responses among whites. Nonetheless, the
same whites who state in surveys they have no problems with blacks and do not care if blacks move in their neighborhoods and that
it is great to have children from all racial backgrounds interacting in schools have very limited and superficial relationships with
blacks, live in white neighborhoods and more when blacks move in, and they have objected for over 40 years to almost all the
government plans to facilitate school integration. Fourth, as far as the issue of black progress, I pointed out in Chapter 1 and in
Chapter 4 that it
is undeniable that blacks are better off today than during the slavery or Jim Crow
period of race relations. Nevertheless, by solely focusing on blacks’ gains in the post-World War
II era, analysts miss the boat because the appropriate way to measure the standing of a racial
group (or any other group) in any society is to compare the statistics and status of that group with those
of the majority group. When analysts do this comparison in the United States they find that blacks have not
improved that much over the past 30 years. Therefore, my point is not to deny that blacks have improved their
standing in the United States but to draw attention to the fact the new mechanisms that have emerged to maintain white privilege
and which account for much of the contemporary black-white gaps. Fifth, those
who insist that blacks are poorer
than whites because of their cultural practices ought to consider the power dimension in the
racial equation. Although blacks can be prejudiced (many are anti-white, anti-Latino, or anti-Asian), since
191
racial inequality is based on systemic power and blacks do not have it in the United States, they are
not “racist” in this systemic sense. There is no theoretical reason why blacks (the socially constructed group of people
that has endured 500 years of white supremacy) could not become “racist” in this sense. However, substantively, this is an
extremely unlikely event. Given the global nature of white supremacy, it is almost impossible for an anti-white or “black supremacy”
order to operate successfully. Even in African countries where whites have lost political power (e.g. South Africa, Namibia, and
Congo), the dictates of the global white supremacy (I borrow the term from Charles W. Mills) and the economic might of Western
nations limit these regimes and severely constrain their possibilities.
192
Racism Impacts – Whites Responsible

Racism has become disguised to the people who do not directly experience it.
BARNDT Director of Crossroads, a non profit organization 2k7
(Joseph-has been a parish pastor and an antiracism trainer and organizer for thirty years, much
of the latter work being done with Crossroads Ministry, Chicago, which he directed for eighteen
years; “Understanding and Dismantling Racism: The Twenty-First Century Challenge To White
America;” p.42)/
Thus, from the perspective of communities of color, the continuing presence of racism in the
twenty-first century is easy to detect. For those who do not directly experience it, however,
its presence is not so easily perceived. Whether it is described as “Bigfoot” or as a velvet glove covering an iron
fist, racism has become more hidden and disguised, so that it is easy for white people to
become convinced that it has gone away, or at least that it is rapidly diminishing and
disappearing. In fact, the very effectiveness of the twenty-first century forms of racism is measure by its not being seen at
work. So, the question is how to expose racism’s new disguises?
The critically important question for this book is how is it possible to see the new forms of the old racism that are operating
How does a person “see” the velvet glove and detect the old
in ways that still devastate people’s lives?
iron fist that is being covered and disguised by a velvet glove? How can a society measure the
presence and the effects of racism? In the chapters that follow, the goal is to reveal the ways in which new forms
of racism comprise the powerful continuation of racism in the twenty-first century. Only as the eyes of each of us are opened
as we begin to understand how racism functions in our society today will we be able to devise new ways to oppose racism and
dismantle it.
To put the question another way, How can we really know whether racial conditions are getting “better” or “worse”? How
can we know that racism is present, and how will we know when it is truly disappearing? Or, more simply put, how do we
measure change from racial injustice to racial justice? Are there common criteria and standards of measurement that will
produce agreement on the status of racial equality and inequality in our society? It is important to have effective and
consistent means of quantifying he presence, absence, and intensity of racism, as well as its increase or decrease over a period
Since some people claim racism is disappearing, and others claim that it is as strong
of time.
as ever, it is important that we use common methods of measuring.
Racism confines all of us to participate in its workings
BARNDT Director of Crossroads, a non profit organization 2k7
Joseph-has been a parish pastor and an antiracism trainer and organizer for thirty years, much
of the latter work being done with Crossroads Ministry, Chicago, which he directed for eighteen
years; “Understanding and Dismantling Racism: The Twenty-First Century Challenge To White
America;” pp.81-82)//AK
Racism takes all of us prisoner. Its ultimate design is to control and destroy everyone. Power3 is the third and
most powerful expression of racism. This is the most devastating and destructive power of racism, because it
subjects all of us to its will, people of color and white people alike.
You cannot cut the body of humanity in half and not have both halves bleed to death. The results of racism are far
more devastating and destructive than its hurting of people of color (Power1) and
benefiting of white people (Power2). In this, the greatest and worst expression of racism’s power, we can see its
ability to make everyone serve its purposes, and to destroy everyone’s humanity in the process. In Power3 we can see that
racism is far more than actions of evil and greedy people; it is an evil and destructive power in itself that has taken on its own
self-controlling and self-perpetuating characteristics. At its deepest level, racism is a massive system of intertwining and
choking roots that wrap and wind themselves around every person, institution, and manifestation of society. We need t
explore how all of us-white people and people of color alike-are imprisoned by this power and cannot easily set ourselves free.
We need to see how all of us face destruction as long as this evil power is at work to divide and take life from us.
Racism is able to make all of us-white people and people of color alike-cooperate with it
and participate in its workings. Each and every one of us is socialized to become the person
that racism wants us to become and to perform the function that racism wants us to
perform. Racism actually claims the power to shape our identity, to tell all of us who we are, white people and people of
color alike.
193
This socializing process is part of the identity formation that starts at the very beginning of each of our lives. Every white person is taught to behave according to a
In our further
racist society’s standards for white people, and every person of color is taught to behave according to a racist society’s standards for people of color.
Power3 in chapter 4, we will call these identity-shaping processes “the internalization of

exploration of
racist superiority” and “the internalization of racist oppression.” And, in chapter 5 and 6, we will see that this
same identity-shaping power of racism has deeply affected the nature of our institutions
and our collective culture in society.
As we examine Power3 more closely we will see the ways in which all of us-people of color and white people-are imprisoned
Although racism is destroying us all, it
by racism. But we will also be clear that our prisons are very different.
is designed to make people of color feel uncomfortable and hurt, and to make white people
feel comfortable and good. But ultimately, we are all deceived, dehumanized, and destroyed
by racism. To paraphrase Malcolm X, we’ve all been misled, we’ve been had, we’ve all been took, hoodwinked, and
bamboozled. We are all defined and controlled in ways that threaten to destroy our very being. We will not fully understand
racism until we recognize how all of us, including white people and white society, are destroyed by white racism.
194
Answers to: Courts Correct for Any Racial Bias
Supreme Court won’t protect against racial bias in plea bargaining
The Supreme Court has now closed the courthouse doors to claims of racial bias at every stage
of the criminal justice process, from stops and searches to plea bargaining and sentencing. The
system of mass incarceration is now, for all practical purposes, thoroughly immunized from
claims of racial bias. Staggering racial disparities in the drug war continue but rarely make the
news. One recent development that did make news
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Answers to: Plea Bargaining Helps Defendants

Prosecutors have all the power during plea negotiations
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2268096, p. 561
During the same decades that the legislatures were funding prisons but not defense attorneys
and the Court was busy interpreting the ineffective assistance of counsel doctrine in such as way
as to make the claim essentially unwinnable and therefore meaningless, our criminal justice
system evolved from an adversarial system to what Judge Gerard Lynch called "a de facto
administrative regime," where prosecutors interpret the laws and adjudicate cases without written
standards or hearings. n15 Most constitutional criminal procedural guarantees that protect
suspects during the investigation and prosecution of state and federal crimes are largely irrelevant
in our world of guilty pleas and appeal waivers. n16 Plea bargaining had triumphed, n17 and
prosecutors hold all of the cards during these negotiations.
It’s not a bargain – it’s coercive because state has all the power. The accused
give up everything, prosecutors give up nothing
Bruce A. Green, Louis Stein Chair and Director, Stein Center for Law and Ethics, Fordham
University School of Law., Duquesne Law Review, Summer 2013, 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"?,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=227709, p. 738-ff
The ordinary criminal process has become too long, too expensive, and unpredictable, in no
small part as a consequence of an intricate federal Code of Criminal Procedure imposed on the
States by this Court. . . . [Plea bargaining is] the alternative in which . . . defendants have sought
relief. n8
One tends to think of the criminal process as dominated by trials and of criminal defense
lawyers as the quintessential trial lawyers, which is how they are portrayed on television. But
more of a criminal defense lawyer's time is spent in what is loosely described as the plea
bargaining process than in the trial process. That is because most criminal cases culminate in a
guilty plea rather than a trial, and most guilty pleas are the product of an agreement in which the
defendant receives something in exchange--for example, the prosecutor drops or reduces some of
the charges or makes a favorable sentencing recommendation. As Justice Kennedy observed in
his opinion for the Court in Cooper, "the reality is that criminal justice today is for the most part a
system of pleas, not a system of trials." n9 In many cases, no real bargaining occurs because
prosecutors have enough leverage to make a "take it or leave it" plea offer. Defendants,
including some who are innocent, ordinarily take the offer, because the stakes are so high:
the risk of a conviction after trial is unacceptable given the relative harshness of the prison
196
sentence that would follow. n10 The academic literature on this process is extensive, if by no
means exhaustive. n11 Commentators overwhelmingly agree that the law governing plea
bargaining is insufficiently developed to protect against coercion, conviction of the innocent,
and other unfairness to the accused.
Supreme Court decisions deserve much of the blame for turning criminal justice into a
process dominated not by trials following the blueprint of the Sixth Amendment, n13 but by
guilty pleas, most of which are the product of a plea agreement, if not a meaningful plea
negotiation. n14 For prosecutors, a plea bargain may provide escape from the length, expense or
unpredictability of criminal trials occasioned in part by constitutional protections, n15 but for
defendants it is primarily an escape from more severe, and arguably excessive, punishment. n16
The Court has said that there is almost no limit to how long an adult defendant may be
imprisoned for any particular crime, even a comparatively trivial one. n17 Further, the Court has
said that there is essentially no constraint on a prosecutor's power to induce a defendant to plead
guilty by first filing or threatening to file charges that carry a high risk or certainty of harsh
punishment if the defendant is convicted and then offering substantial leniency in exchange for a
guilty plea. n18 These decisions invite Congress and state legislatures to authorize undeservedly
high sentences, including mandatory sentences that remove discretion from the sentencing judge,
with the expectation that lower sentences will be imposed on the overwhelming majority of
defendants, who will plead guilty in the plea bargaining process. Legislatures understand that
prosecutors will charge defendants severely to gain leverage and offer them leniency to secure
guilty pleas. In this process, the measure of fair punishment has ceased to be the excessive
sentences that criminal statutes authorize and trial judges impose on defendants convicted at trial;
rather, the baseline has become the lower (but often still harsh) sentences that defendants receive
after pleading guilty. Defendants pay a stiff penalty for exercising their trial rights. And a plea
bargain often is still no bargain.
For some, guilty pleas may also be a means of escape from pretrial detention. n19
Defendants accused of low-level offenses who are incarcerated pending criminal proceedings
may be allowed to plead guilty in exchange for a non-custodial sentence or time served. It may
appear reasonable to defendants in this situation to accept the consequences of a conviction in
order to secure their liberty. n20 Although the Eighth Amendment forbids "excessive bail," n21
the Court's decisions do not effectively restrict pretrial detention of individuals accused of
misdemeanors and low-level felonies. n22 Finally, while it is true that defendants who are at
liberty while awaiting trial on minor charges often plead guilty to avoid the disruption of
returning repeatedly to court--for these defendants, "the process is the punishment" n23 --there is
little to suggest that protracted criminal proceedings for violations and misdemeanors are
attributable to liberal judicial interpretations of procedural rights. n24
While it seems fair to characterize the criminal process as "a system of pleas," n25 one might
observe more broadly that ours is a system of waivers. A guilty plea, by its nature, waives trial
rights, including the right to a jury trial, to cross-examine witnesses and to compel their
testimony. To the extent of admitting guilt, the defendant who pleads guilty also waives the right
against self-incrimination. The same leverage that prosecutors employ to extract guilty pleas is
used to extract waivers of rights other than the trial rights that a guilty plea necessarily waives.
The waiver paradigm--in which prosecutors extract procedural concessions in exchange for
197
leniency--has come to dominate the criminal justice landscape. n26 The following examples
should suffice to make the point. n27 [*742]
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 prosecutor'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 purportedly illegal sentences that they believe to be too low. If the public
interest in correcting 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 convictions of the innocent. In particular, prosecutors have sometimes required
defendants to waive the right to DNA testing 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 defendants 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 procedural right, and one not waived by a guilty plea, is the right
to counsel. Suppose the prosecutor, to conserve state resources, required the defendant to forgo
appointed counsel and proceed pro se, on the theory that if a defendant 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 evidence rules protect against the admission of
statements made in plea negotiations, the Supreme Court has held that this protection may be
198
waived. n38 Some prosecutors exploit this opportunity by requiring defendants who wish to be
considered for a favorable plea offer to submit to questioning and to agree that, at least in certain
circumstances, the prosecution may offer the defendants' statements in evidence if no plea
bargain is concluded. n39 One might question whether 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 offer the defendant's statements in
evidence, as contemporary agreements sometimes do. It is hard to justify prosecutors'
unwillingness 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 escaping 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 prosecution 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 prosecution 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 problem-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 individual
problems, such as addiction or mental illness, and in offering alternatives to incarceration,
including treatment. But, in some jurisdictions, defendants who seek to have their cases diverted
to these alternative courts are required 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 unsuccessful in their
drug treatment program than if they had simply gone to criminal court and participated in the
traditional 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
199
even question whether prosecutors are sacrificing anything meaningful in this system of waivers
in order to obtain relief from the length, expense and unpredictability of the trial process
occasioned by overly protective judicial decisions. Criminal defendants are sacrificing
procedural protections, but prosecutors give up little. Rather, prosecutors use their
leverage, in a manner legitimized by judicial decisions, to achieve results they generally
regard as just. Although the system promotes prosecutors' administrative interests, they are
impelled to give up little in exchange.
It’s not an equal bargain
Monitoring the Plea Process, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2268096, P
577-8
Second, aside from the lack of transparency (the prosecution knows what Brady and Giglio
material exists, the defense attorney often has no clue), the parties do not have nearly equal
bargaining power. This affects both the separation of the guilty from the innocent and the
rationality of sentences among the guilty. Prosecutors can punish recalcitrant defendants by
heaping on additional charges for failure to capitulate. n60 Prosecutors can also threaten to
include a charge imposing a mandatory minimum or consecutive sentence, can charge a
weapon as a separate offense rather than a penalty enhancement, can pin the entire amount
of loss or drugs on a minor conspirator, and can file notice of prior offenses, which under
federal and state three strike-type provisions often double or triple a sentence. n61
Defendants have much more of an incentive to accept a bargain now as sentence lengths have
become more draconian over the last few decades, n62 and rewards for entering pleas, via
remorse, cooperation, and other discounts have grown larger. In the federal system, for example,
the defendant receives a two point reduction (about twenty-five percent) off her sentence for
acceptance of responsibility when she pleads guilty, and then an extra third point for a "timely"
plea, n63 which is a plea taken before the prosecutor begins to prepare for trial. One extra point
can translate to many months of imprisonment in serious cases. Likewise, some federal
defendants get a four-point reduction for "fast track" pleas if that federal docket is
particularly crowded. n64 And the only way out of a mandatory minimum sentence is a
substantial assistance motion by the government. n65
No limits on prosecutors in plea negotiations
Whether a good plea deal is offered to a defendant is entirely up to the prosecutor. And if the
mood strikes, the prosecutor can transfer drug defendants to the federal system, where the
penalties are far more severe. Juveniles, for their part, can be transferred to adult court, where
they can be sent to adult prison. Angela J. Davis, in her authoritative study Arbitrary Justice: The
Power of the American Prosecutor, observes that “the most remarkable feature of these
200
important, sometimes life-and-death decisions is that they are totally discretionary and virtually
unreviewable.”61 Most prosecutors’ officeslack any manual or guidebook advising prosecutors
how to make discretionary decisions. Even the American Bar Association’s standards of practice
for prosecutors are purely aspirational; no prosecutor is required to follow the standards or
even consider them.Alexander, Michelle. The New Jim Crow (p. 115). The New Press. Kindle
Edition.
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Answers to: Defendants Can Challenge Bad Deals

Defendants cannot rely on “ineffective assistance” claims to challenge bad plea
deals
Monitoring the Plea Process, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2268096, p.
592
Moreover, ineffective assistance of counsel claims are inadequate to vindicate the right of
defendants to effective plea negotiation representation, not only because the standard for
prevailing on such a claim is so very high, but also because of the numerous structural
impediments to bringing an ineffectiveness claim. For example, non-capital indigent defendants
are not entitled to state-provided representation in state post-conviction or federal habeas claims.
n107 Given the increasing procedural complexity of these forums, proceeding pro se is a sure
path to failure for these defendants. n108 Finally, criminal defendants are extremely unlikely to
pursue malpractice claims against their trial counsel for bad advice, providing no incentive for
defense attorneys to change their behavior. n
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Answers to: New Court Decisions (Frye/Lafler) Improve Plea

Bargaining Fairness
Frye and Lafler won’t result in significant legal changes to improve the fairness
of plea bargaining
Wesley MacNeil Oliver, Associate Professor and Director of the Criminal Justice Program at
Duquesne University School of law, Summer 2013, Duquesne Law Review,
http://heinonline.org/HOL/LandingPage?handle=hein.journals/duqu51&div=33&id=&page= p.
633-5
There are a range of opinions about the potential impact of the Supreme Court's latest
opinions. My view of the potential of these cases to create some meaningful limit on the presently
unregulated world of plea bargaining is probably the most optimistic, or radical, of anyone who
participated in this conference. Missouri v. Frye and Lafler v. Cooper, in my view, hold the
potential to improve the quality of representation defendants receive in the negotiation process
and may lead judges to create a set of advisory guidelines for the exercise of prosecutorial
discretion. The direct impact of these opinions is not, however, likely to be dramatic. It is
improbable that any large number of convictions will be overturned as a result of these decisions,
just as few convictions are reversed for ineffective assistance of counsel at trial or on appeal. The
indirect effects of these opinions could, however, fundamentally change plea bargaining. Defense
lawyers may come to value their skills as negotiators just as they currently evaluate themselves
on the basis of their trial and appellate abilities. And in crafting remedies for violations of
ineffective assistance of counsel during the plea bargaining phase, judges will have an
opportunity to explain the appropriate exercise of prosecutorial discretion. The impact of these
decisions could therefore be enormous.
Contrary to the view of Professor Al Alschuler, the opinions surely changed the legal
landscape. n1 The Supreme Court's two previous forays into this area recognized the right to the
effective assistance of counsel during plea bargaining but did not recognize the right to an
effective negotiator. In Hill v. Lockhart, the Court concluded that the defendant had not suffered
prejudice because the defendant had not contended that if counsel had performed adequately he
would have rejected a guilty plea, gone to trial, and presumably had a reasonable chance of
acquittal. n2 This prejudice standard limited the Sixth Amendment obligation of defense counsel
in the plea bargaining process to deciding whether a defendant has a sufficiently good defense
that he should exercise his constitutional right to a trial. A defendant was not prejudiced, under
Hill, if his lawyer unreasonably failed to present facts, or arguments, to a prosecutor that might
have produced a more generous offer. Hill's prejudice standard is one that views plea offers as
prosecutorial largesse. Defense counsel's role, under Hill, was limited to deciding whether his
client would be better served by rejecting this largesse and going to trial.
Padilla v. Kentucky strongly suggested that defense counsel had a larger duty during the plea
bargaining process, but did not address the question of prejudice as it had not been considered by
the lower courts. n3 In Padilla, a 40-year non-citizen resident of the United States, who served his
country with honor in the Vietnam War, was charged with possession of 400 pounds of marijuana
203
with the intent to distribute. n4 His lawyer worked out a plea agreement with the prosecutor, but
Padilla, concerned about his immigration status, asked his attorney if pleading guilty would cause
him to be deported. His attorney informed him that because Padilla had been in the country so
long, this would not be a concern. This advice was entirely incorrect. The drug crimes to which
Padilla pled made him eligible for deportation. n5
The sole issue presented to the Supreme Court in Padilla's case was whether his lawyer's
performance in providing this incorrect information amounted to performance below that of a
reasonable lawyer. n6 The lower courts had held that the deportation consequences of a
conviction were a collateral matter and defense counsel was not required to make his client aware
of such consequences of a conviction. n7 The U.S. Supreme Court disagreed, finding deportation
to often be a greater punishment than those directly imposed by the criminal justice system. n8
Interestingly, the Court observed that had defense counsel been aware of the immigration
consequences of a conviction, he could have suggested a resolution of the case that would have
satisfied the prosecutor's interests and not rendered Padilla subject to deportation.
To understand how differently the Court in Padilla viewed the world, it is important to
consider the facts of Hill v. Lockhart. n10 In Hill, the defendant was charged with first-degree
murder and theft. Under Arkansas law, first degree murder, at that time, was punishable by a life
sentence or, remarkably by modern standards, 5- to 50-years incarceration. n11 The prosecution
and defense counsel agreed to a sentence of 35 years, to be served concurrently with a 10-year
sentence for the theft. n12 The prosecutor and defense counsel both assumed that the defendant
would be eligible for release after he served one-third of the sentence as neither realized that the
defendant had a prior felony.
The Court in Hill did not consider whether defense counsel had performed inadequately in
failing to learn about the prior felony. Even if he had, under Hill's reasoning, the defendant would
have suffered no prejudice because defense counsel had not misapprehended the strength of the
prosecution's case against him before recommending a guilty plea. Hill's prejudice standard failed
to require defense counsel to engage in the most-frequently useful type of advocacy performed at
the plea bargaining stage--making arguments for a more lenient sentence. If the prosecution in
Hill was satisfied with the defendant being eligible for release after serving one-third of a 35-year
sentence, it may have been satisfied with him being eligible for release after serving one-half of a
somewhat lesser sentence. On the contrary, the prior felony may have made the prosecution
disinclined to grant further, or even this much, leniency. But without knowing the actual
consequences of his client's sentence, defense counsel in Hill was unable to consider whether to
approach the prosecution with a counter-offer. Because counsel's lack of knowledge had nothing
to do with assessing the likelihood of acquittal at trial, however, the Court reasoned that there was
no remedy, even if the failure to learn this information was defense counsel's fault.
Padilla v. Kentucky therefore offered a very different perspective on the role of defense
counsel. Counsel's misapprehension about the immigration consequences of the plea said nothing
about counsel's understanding of the strength of the prosecution's case. Had Padilla's lawyer
known that his client's plea to a drug offense made him eligible for deportation, however, it
would have radically changed the nature of the negotiation. Still, Padilla did not recognize the
Sixth Amendment right to an effective criminal negotiator as its musings about how the
knowledge of immigration consequences would have changed the results in this case were
entirely dicta. The only issue before the Court was whether the lower courts had correctly
204
concluded that the performance of Padilla's counsel had been constitutionally deficient. n13 The
Court concluded that it had been but remanded the case to the Kentucky Supreme Court to
determine whether Padilla had suffered prejudice. n14
Lafler and Frye therefore, for the first time, gave the Court an opportunity to change the Hill
prejudice standard. In both of these cases, the Court concluded that if defense counsel's failures
caused the defendant to reject a plea that he would have accepted, that the prosecution would not
have revoked, and that the trial court would have entered, then his client has suffered prejudice.
n15 In Frye, defense counsel failed to communicate the plea offer to his client before the offer
expired. n16 In Lafler, defense counsel misadvised his client that as a matter of law he could not
be convicted of the most serious crimes he was facing. n17 These errors--blatant errors--occurred
during the negotiation process. The defendants in neither Lafler nor Frye were asserting that their
lawyers improperly caused them to waive their right to a trial. In Lafler, the defendant argued that
his lawyer improperly caused him to exercise it. In Frye, the Court held that defense counsel is
required to perform effectively in the process of negotiation and in Lafler, defense counsel is
required to consider whether waiving constitutional rights is in his client's interest.
Padilla's dicta now becomes relevant. Now that errors in the negotiation process can
prejudice a defendant, defense counsel's failure to learn information that might well change the
nature of the negotiation would seem to provide a basis for relief. Prosecutorial discretion is
practically boundless. n18 Prosecutors can, and do, consider all sorts of reasons for offering
leniency in plea offers, including the risk of acquittal, conservation of resources, cooperation, and
equitable considerations. n19 The closest analog to the range of consideration for prosecutors is
the power of juries in capital cases to consider anything in mitigation; prosecutors can consider
even more than capital sentencing juries. n20 Capital juries can only look to anything about the
defendant that makes a defendant sympathetic--prosecutors can also consider their institutional
interests in obtaining cooperation or resolving cases without a trial. n21 In the capital context, the
most frequent basis for a finding of ineffective assistance of counsel is a claim that mitigating
evidence was not discovered. n22 Padilla's dicta suggests that defendants will be able to bring just
these sorts of claims.
While these decisions do change the legal landscape, many have reasonably concluded that
they are unlikely to produce a large number of reversed convictions. n23 Even in the capital
sentencing context, there are few convictions overturned for attorney error, though there are more
reversals in this context than in the guilt phase of all trials--a somewhat remarkable statistic given
the comparatively small percentage of death penalty cases. n24 The actual number of convictions
reversed because of ineffective negotiation may therefore be greater than commentators have
anticipated, but the indirect impact of these cases on the criminal justice system may well be
considerably more substantial than the impact felt from the reversal of convictions.
These decisions could improve the quality of negotiations by criminal lawyers by changing
what they consider to be their primary role to be in the criminal justice system. Ironically,
criminal defense lawyers do not view themselves as negotiators, despite the fact that 94 percent
of all state criminal convictions and 97 percent of all federal criminal convictions result from
guilty pleas. A quick look at the continuing legal education courses for defense lawyers illustrates
this point. At national and local conferences, defense lawyers take courses on jury selection,
cross-examination, opening and closing statements, appellate advocacy and suppression of
illegally obtained evidence. One is hard pressed to find a CLE on plea bargaining. Compare this
205
to civil lawyers. Just to offer one example, the Harvard Program on Negotiation runs seminars
throughout the year teaching civil lawyers how to better negotiate. n25 Civil lawyers see no
distinction between negotiating a favorable settlement and achieving a similar verdict after a jury
trial. Criminal lawyers certainly negotiate--the numbers don't lie--but the negotiation is still very
much underground in criminal bar circles.
A look at the way lawyers compare their abilities also demonstrates the different views that
criminal and civil lawyers have toward negotiation. Civil lawyers make no distinction between
victories won in trial or settlements for their clients. The Million Dollar Club lists attorneys who
have obtained judgments for their clients of a million dollars or more, regardless of whether they
were obtained through a trial or negotiation. By contrast, when O.J. Simpson was charged with
murder--and the State of California had an extraordinarily compelling case against him--his first
lead counsel, Robert Shapiro, was criticized for having experience primarily as negotiating pleas
for his clients. Despite the not guilty verdict in that case, given the evidence, it seems that a
lawyer with excellent negotiation skills would have been an ideal choice for O.J. Simpson, but
this skill set of Mr. Shapiro's was offered almost derisively by those commenting on the case.
The new prejudice standard, previewed in Padilla, may change the way defense lawyers view
their jobs. It may seem odd to suggest that requiring defense counsel to meet a very low threshold
of effectiveness in negotiation will cause them to improve their skills. The Strickland standard,
after all, provides relief only when a lawyer performs worse than any reasonable lawyer would
have performed in this situation--and grants extraordinary deference [*639] to an attorney's
tactical decisions. n26 And negotiation seems especially subject to judicial deference. As the
Court observed in Lafler, there are a number of styles of negotiation. n27
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Reforms Counterplan Answers
Providing more assistance is useless because those entering please waiver

rights to effective assistance and courts will allow
Nancy J. King, Lee S. & 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,
In a criminal justice system where procedural rights are freely traded for sentencing and
charging concessions, each heralded decision of the Supreme Court enforcing or expanding a
right of the accused produces yet another bargaining chip for the defense. As rights expand, so do
waivers of the opportunity to enforce those rights on review. n1 As one court stated, the
government "enters into plea agreements to avoid costly litigation, not to postpone it." n2 It was,
then, unsurprising when, amid the accolades for the Court's decisions in Missouri v. Frye and
Lafler v. Cooper, n3 one ex-prosecutor suggested that defendants should have to waive the right
to secure relief under these new cases if they want a plea deal. n4
The fact is, courts already invoke waiver terms in plea agreements to block claims of poor
representation alleged to have occurred before, during, and after the decision to plead guilty, and
they are likely to continue to do so. Critics of this practice charge that that any advice to sign such
a waiver is itself ineffective assistance, and that the waivers cannot be knowing and voluntary. I
refute these arguments, explaining why courts will probably continue to conclude that defendants
may, consistent with the Constitution, knowingly and voluntarily waive their right to later raise
claims of ineffective assistance of counsel.
No way to improve the protections in the plea process --
p. 681-92
Albert W. Alschule, Julius Kreeger Professor of Criminal Law and Criminology, Emeritus,
the University of Chicago, Summer 2013, Duquesne Law Review, Plea Bargaining After Lafler
and Frye: Article: Lafler and Frye: Two Small Band-Aids for a Festering Wound, p. 683-4 III.
Mission Impossible: Guaranteeing the Effective Assistance of Counsel in the Plea
Negotiation Process Even 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
[*682] 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
207
counsel." n38 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 well-informed defendants making rational assessments of surrender
and gain. n39 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. n40 Plea negotiation also minimizes work and
reduces conflict within what organizational theorists call the "courtroom workgroup." n41
Bargaining promotes cordial and comfortable relationships with prosecutors and judges.
These interests may influence public defenders even more than they do private lawyers. n42
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
suf [*683] fer. 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." n43 The lawyers whose
performances were judged ineffective in Lafler and Frye were appropriately forthcoming, n44 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 [*684] 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. n45 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. n46 Self-interested advice to plead
guilty, inept negotiating, and erroneous predictions, however, almost certainly will not suffice. In
our lawyer-supportive 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. n47 A prosecutor in Ventura County, California recalled the telephone calls
he received from a lawyer who invariably persuaded his clients to plead guilty. "Phil," this lawyer
would say, "will you let my guy go with a misdemeanor? Of course we'll plead anyway, but I just
wondered if you could let him go with a misdemeanor." The prosecutor always answered that he
could not reduce the charge "in view of the circumstances of the case." n48 Although the lawyer
described by this prosecutor pocketed his clients' cash without helping them, Lafler and Frye will
not touch him. Judicial decisions cannot significantly ameliorate the problem of defective,
self-interested lawyering in the plea-negotiation process. [*685] C.The Expected Difference
Between Sentences Imposed Following Trials and Those Imposed Following Guilty Pleas
208
Consider what offers and agreements should look like in a plea-bargaining system that does only
what bargaining prosecutors and defense attorneys acknowledge (and boast) that they do.
Viewing offers and agreements from this perspective will lead to a few additional remarks about
what might account for findings like David Abrams'. Prosecutors readily acknowledge
engaging in both "odds bargaining" and "costs bargaining." n75 That is, they offer lower
sentences in exchange for guilty pleas both to eliminate the risk of acquittal at trial and to
avoid the cost of trials. n76 A prosecutor who engaged only in odds bargaining might
estimate the likelihood of a defendant's conviction at trial at 50% and the defendant's
probable sentence if convicted at trial at ten years. The prosecutor then might offer the
defendant a sentence of five years in exchange for his plea. Prosecutors sometimes quote the
line, "Half a loaf is better than none."
209
n39 Frank H. Easterbrook, Plea Bargaining is a Shadow Market, 51 DUQ. L. REV.
551, 556 (2013).
n51 William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV.
505, 598 (2001); see also HARVEY SILVERGLATE, THREE FELONIES A DAY:
HOW THE FEDS TARGET THE INNOCENT (2011).
210
n1 See Nancy J. King, Regulating Settlement: What is Left of the Rule of Law in the
Criminal Process?, 56 DEPAUL L. REV. 389, 389-90 (2007); William J. Stuntz, The
Political Constitution of Criminal Justice, 119 HARV. L. REV. 780, 791 (2006).
n72 See, e.g., Jane Moriarty & Marisa Main, "Waiving" Goodbye To Rights: Plea
Bargaining And The Defense Dilemma of Competent Representation, 38 HASTINGS
CONST. L.Q. 1029, 1044 (2011) (noting uncertainty surrounding scope of Padilla).
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Duquesne Law Review
n23 Cynthia Alkon, Plea Bargaining, Just as it Ever Was?, THE MAYHEW-HITE
REPORT ON DISPUTE RESOLUTION AND THE COURTS, (May 2012),
http://moritzlaw.osu.edu/epub/mayhew-hite/2012/05/plea-bargaining-just-as-it-ever-was/.
n24 Justin F. Marceau, Embracing a New Era of Ineffective Assistance of Counsel, 14

U. PA. J. CONST. L. 1161, 1161 (2012).
211
n119 See Peter J. Henning, Sentences Get Harsher in White-Collar Cases, N.Y.
TIMES DEALB%K (Apr. 12, 2010), http://dealbook.nytimes.com/2010/04/12/sentences-
get-harsher-in-white-collar-cases/.
n127 See Susan R. Klein, Monitoring the Plea Process, 51 DUQ. L. REV. 559 (2013);
Russell D. Covey, Plea Bargaining after Lafler and Frye, 51 DUQ. L. REV. 595 (2013).
16 of 75 DOCUMENTS
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Summer, 2013
Duquesne Law Review
51 Duq. L. Rev. 709
LENGTH: 11345 words
Plea Bargaining After Lafler and Frye: Article: Plea Bargaining in the Shadow of the Constitution
NAME: Richard L. Lippke*
BIO: * Department of Criminal Justice, Indiana University, Bloomington, IN 47405,

rllippke@indiana.edu.
212
TEXT:
[*709]
I. Introduction
My aim in this discussion is the bold (some will say audacious) one of showing how the
Court might have argued that plea bargaining, as it currently exists in the United States, is
contrary to well-established and broadly-accepted constitutional values respecting the
adjudication of criminal charges. By "constitutional values" I mean ones that any plausible
reading of the Constitution, along with its history of interpretation, establishes as basic to the
operations of the U.S. criminal justice system. Most prominent among these values are the
presumption of innocence, the burden of proof on the government in criminal cases, the high
standard of proof the government must meet to convince fact-finders of the guilt of criminal
defendants, the right to an orderly and public trial by an impartial tribunal, and the necessity of
protecting those accused of crimes from measures designed to coerce admissions of guilt from
them. Contrary to what Justice Scalia claims, I contend that plea bargaining is in the Constitution,
if being in it means that salient constitutional values have implications for how it should be
structured and regulated. Current plea [*711] bargaining practices are contrary to those values.
Rather than tinkering further with what effective assistance requires of defense counsel in plea
cases, the Court should take the bold step of indicating that the existing plea system is
constitutionally defective. Fortunately, the Court could, at the same time, articulate a set of
principles for the reform of plea bargaining. Though such principles might not entirely dictate the
acceptable contours and limits of plea bargaining, they would point toward ways in which it
should be significantly restrained. In particular, these principles would tell us to find ways to
reduce the discretion prosecutors have to induce guilty pleas from defendants independently of
the evidence they can adduce to demonstrate their guilt.
The discussion proceeds as follows. In the first section, I identify the constitutional values
that underlie criminal trials. Again, my aim will be to identify substantive values that have, if
not indisputable constitutional pedigrees, are well-founded within the mainstream of
constitutional thinking. In the second section, I show how current forms of plea bargaining
are deeply at odds with those values. Specifically, as it is currently structured, plea bargaining
makes the state's evidence against criminal defendants of marginal significance, permits
prosecutors, mostly by themselves, to determine the cogency and reliability of the evidence
against defendants, and tolerates the use of coercive tactics by prosecutors to obtain guilty
pleas. In the third section, the lessons of the first two sections are put to use in developing
principles for the reform of plea bargaining. We need not provide full-on criminal trials for all
individuals charged with crimes, or even for many of them. But we should require states and the
federal government to substantially reform plea practices so that they are aligned with
constitutional values. Various challenges to and problems with doing so are addressed. In the
final section, limitations in the reforms I advocate are discussed. It is conceded that restrained
plea bargaining practices will not suffice, all by themselves, to bring such practices fully in
line with important constitutional values.
II. Trials and Constitutional Values
213
Any suggestion that there is a set of widely accepted, substantive constitutional values with
respect to the adjudication of criminal charges will be met with considerable skepticism. Those
familiar with the deep and abiding controversies concerning consti [*712] tutional interpretation
will believe that such a claim is preposterous on its face. n4 In particular, there has been long-
lasting and divisive debate about all of the provisions of the Bill of Rights dealing with criminal
procedure. More than this, a stingy reading of the Constitution suggests that certain widely
accepted features of criminal procedure--the presumption of innocence, the burden of proof, and
the reasonable doubt standard foremost among them--are nowhere to be found in it. n5 How,
then, can I appeal to a set of core constitutional values with respect to criminal charge
adjudication and hope to gain many adherents?
For one thing, several of the most significant requirements of appropriate charge
adjudication are widely accepted, even if they are not specifically inscribed in the words of the
Constitution. Among these requirements are that criminal defendants are entitled to a
presumption of innocence, the burden of proof is on the government in criminal trials, and
the government has to meet a high standard of proof in public trials before impartial fact-
finders should be prepared to convict defendants. n6 Granted, what any of these provisions
means is open to dispute, especially at the margins. n7 But that mere suspicions on the part of
government officials that individuals are guilty of crimes is not sufficient to warrant their
punishment, that it is up to government officials to discover and produce convincing evidence of
their guilt, and that the evidence must be powerfully persuasive of their guilt, are claims unlikely
to be gainsaid by many. Likewise, few will dispute the value of having some tribunal independent
of the government officials who initially investigate and charge individuals with crimes evaluate
the probative force of the evidence against defendants. The right to trial by jury has long been
understood as a vital safe [*713] guard against mistaken or malicious prosecutions
precisely because it serves as a check on the actions of government officials. n8 Its public
and orderly character, its provision of opportunities for defendants to confront and
challenge the evidence produced by state officials against them, and the right of defendants
to have the assistance of counsel during this process, were all conceived by the nation's
founders to be crucial in balancing the government's formidable powers to arrest, charge,
and convict. Only charge adjudication processes of this kind attain the legitimacy to which
exercises of government power should aspire.
Admittedly, some provisions of the Bill of Rights, especially as they have been interpreted
by the Supreme Court, are hugely controversial. Fortunately, they can either be ignored for my
purposes or aspects of them that are not in dispute can be incorporated into my argument. For
instance, I can safely sidestep most of the controversy concerning searches and seizures and the
appropriate remedies when state officials conduct improper ones. n9 Even if we had very
different rules governing searches and seizures, as well we might, I doubt that they would lead us
to abandon or significantly modify other key constitutional provisions governing criminal
procedure. With regard to the Fifth Amendment right against self-incrimination, though some
question the value or scope of the right against self-incrimination, especially as it has been
interpreted by the Supreme Court, I doubt that anyone thinks it constitutionally permissible
for state officials to torture or directly coerce (via threats) criminal suspects in order to gain
confessions from them. n10 The unreliability of such confessions is too patent to be tolerated,
not to mention the ways in which such methods of extracting information assault the dignity of
214
persons. Hence that [*714] part of the provision might be folded into my argument without too
much difficulty.
It is worth noting that the nation's founders appear to have put much more faith in juries than
we do, permitting them to determine both facts and law, and thus to refuse to enforce laws which
they deemed to be unjust or unconstitutional. n11 Also, the right to trial was not viewed as the
defendant's alone to exercise or not. n12 Jury trials were viewed as serving important public
values, in ensuring the integrity of charge adjudication procedures against suspicions of
corruption or tyranny, and in educating the public by bringing them into contact with more
learned judges and involving them in debates about public affairs. Most striking of all, given
current practices, guilty pleas by those accused of crimes were for a long time strongly
discouraged, so significant were the perceived purposes served by jury trials. n13 Trials were
esteemed as adversarial contests in which defendants, aided by counsel, vigorously challenged the
government's case, rather than forums in which defendants passively acceded to the government's
accusations.
Times have changed, of course. It is not my aim to reject guilty pleas or insist that all
defendants be given jury trials. The criminal law is considerably more complicated than it was at
the time of the nation's founding and the volume of cases with which the criminal justice system
must contend is enormously greater. So too the existence of standing police forces, armed with
sophisticated technologies to detect and prove crimes, has likely increased the number of cases in
which there is overwhelming evidence of defendant guilt. Trials might not be as necessary as they
once were to determine guilt, but many of the reasons why the founders were so devoted to jury
trials continue to have implications for contemporary charge adjudication procedures.
It will be useful to press beyond the history of court decisions and constitutional text
affirming these constitutional values to consider, if only briefly, what view about the state and its
power over its citizens organizes and makes sense of these values. Doing so will help us to
appreciate what anyone who wishes to reject such values is up against. Two plausible accounts
have emerged concerning why the Constitution makes it so difficult for state offi [*715] cials to
convict individuals of crimes. The first account emphasizes the fallibility of our procedures for
determining criminal guilt or its absence. We know that such procedures sometimes produce
mistaken convictions and mistaken acquittals. As between these two undesirable outcomes, we
have a preference, and some would stay a strong one, for avoiding the former kinds of mistakes
more than the latter kinds. n14 By granting criminal defendants the presumption of
innocence, insisting that the government bear the burden of proof and meet a high standard
in order to convince an impartial tribunal, all the while shielding defendants from risks of
forced confessions, we express the societal preference for not punishing the innocent at the
expense of punishing all of the guilty. If mistakes cannot be avoided, it is better to err on the
side of letting the guilty go unpunished than to punish the innocent. n15
The second account is not at odds with the first account, but suggests that there is more to
these constitutional values than a concern with error distribution. n16 The second account begins
by noting the awful character of legal punishment, especially in its more severe forms. Legal
punishment authoritatively condemns individuals, thereby stigmatizing them. It also deprives
them of goods (life, liberty, or property) to which they are otherwise entitled. Moreover, its
effects linger, with lengthy imprisonment having the potential to sharply diminish the quality of
peoples' lives. n17 At the same time, legal punishment's collateral consequences affect others who
215
are largely innocent of wrongdoing. In the face of these sobering facts about legal punishment, it
might be claimed that we must strive for moral certainty, if not epistemic certainty, in its
infliction. The combination of the presumption of innocence--understood robustly, as a
presumption on the part of fact [*716] finders that those charged with crimes are factually
innocent of them--along with the burden of proof and the high standard of proof is, according to
this line of argument, a complex moral assurance procedure. n18 Though we can never be
epistemically certain that those we punish are factually guilty, we can set things up so that it is
difficult for the government to convict individuals of crimes and punish them. Trials are ordeals
for government officials, and should be. If we arrange things so that, in spite of the odds set
against them, government officials can convince fact-finders of the guilt of defendants, then we
will have acted reasonably and fairly in meting out legal punishment to those duly convicted of
crimes.
I shall make no effort to privilege one of these accounts over the other. Either will suffice for
my purposes. The Supreme Court, in some of its rulings, seems to favor the first, error
distribution account. n19 But the second account might have better resonated with the framers
and ratifiers of the Constitution and Bill of Rights. As legal scholars have shown, eighteenth
century criminal trials emerged from earlier trials in which jurors had to be convinced to render
guilty verdicts in spite of their fears of adverse divine judgment should they make mistakes. n20
Judging others and thereby being instrumental in the infliction on them of sometimes
spectacularly cruel criminal sanctions was viewed by inhabitants of the sixteenth and seventeenth
centuries as a morally freighted task. The reasonable doubt standard may well have evolved not to
protect criminal defendants so much as to ensure fact-finders that they would not be condemned
by God for their mistaken verdicts, if indeed such verdicts were the outcomes of trials. Though
such concerns might have ebbed by the time the Constitution and Bill of Rights were adopted, the
notion that considerable care (along with a good dose of humility) must be exercised in rendering
verdicts in criminal trials likely persisted. Without this, it seems hard to explain the
disproportionate emphasis in the Bill of Rights on the rights of criminal suspects and defendants.
[*717]
In any event, I hope it is apparent that the constitutional values on which I draw in
subsequent sections of this paper are solidly in the mainstream of plausible thinking about the
Constitution and its history of interpretation. n21 In a nutshell, these values point unmistakably in
the direction of having charge adjudication procedures that are public, orderly, and adversarial.
Such procedures should produce determinations of guilt or its absence by an independent tribunal
that is capable of putting its suspicions about defendants aside and willing to convict only if the
evidence presented to it is powerfully persuasive of the guilt of the accused. We now turn to an
examination of the ways in which contemporary plea bargaining practices in the United
States are at odds with such values.
III. Plea Bargaining and Constitutional Values
The story I tell in this section is familiar, though some of the details are slightly different.
n22 Plea bargaining in the United States has evolved in ways that give prosecutors vast and
largely unchecked power to pressure those they charge with crimes into entering guilty
pleas. The pressure exerted on defendants derives primarily from prosecutorial
manipulation (sometimes with the tacit cooperation of judges) of the sentencing differential--the
difference in punishment received by defendants who plead guilty and defendants who go to trial
216
and are convicted. Prosecutorial ability to manipulate the sentencing differential depends on their
considerable charging discretion and their authority to make sentencing recommendations. n23 It
is widely believed that prosecutors routinely over-charge defendants in order to increase the
pressure [*718] on them to plead guilty. n24 Since most jurisdictions in the United States do not
have concurrent sentencing schemes, the more charges individuals face, the longer are their
potential sentences. Offers to drop charges in exchange for guilty pleas can thus open up
significant sentencing differentials. So can offers to make sentencing recommendations
significantly below the statutorily available maximums. Depending on the kinds of crimes in
question, there is evidence that prosecutors routinely proffer sentence reductions of from
thirty-three percent to seventy-five percent below the statutory maximums in order to
attract guilty pleas. n25 Needless to say, the combination of offers to drop charges and make
favorable sentencing recommendations can make guilty pleas extremely enticing.
But that is not the end of the story, for it seems clear that defendants who refuse plea
bargains and are instead convicted at trials risk post-trial sentencing recommendations by
prosecutors that are designed, in part, to punish them for having exercised their constitutional
right to trial adjudication. Though they are hard to detect, let alone prove, so-called "trial
penalties" appear to be more than theoretical possibilities. Prosecutors do not appreciate
defendants who reject plea deals and force them to do their jobs. n26 Neither, apparently, do
some judges. n27
The distinction between the rewards defendants might receive for waiving their
constitutional right to trial, and with it the right against self-incrimination and to appeals of their
convictions, and the extra measure of punishment they might receive for exercising such rights, is
crucial, though often glossed over in analyses of plea bargaining. n28 Simply put, there is a clear
difference between offering to reduce a defendant's punishment in exchange for a guilty plea and
increasing it (or threatening to do so) if she declines the offer, goes to trial, and is convicted. The
former might plausibly be cast as offering defendants less than their deserved [*719]
punishment. Of course, it will do this only if two further conditions are satisfied: first, defendants
must not have been strategically over-charged in order to put additional pressure on them to plead
guilty. Second, the sentencing scheme in place must be both ordinally and cardinally
proportionate--that is, such that it can plausibly be characterized as tending to assign offenders
deserved punishments. n29 Assuming that both of these conditions are satisfied, which they often
will not be, rewards for waiving crucial rights reduce the punishment that defendants might
lawfully be assigned and probably cannot accurately be characterized as "coercive." n30
Trial penalties, by contrast, are added sanctions assigned to offenders not for their crimes but
to discourage or punish them for the exercise of their constitutional rights. I have argued
elsewhere that such penalties cannot be justified and are, as a result, illicit. n31 Unlike offers to
reduce charges or sentences, the threat of such penalties cannot plausibly be held to make
defendants better off. n32 The Supreme Court would likely condemn the use of threats of bodily
harm by the police to induce suspects held in custody to incriminate themselves. Yet it tolerates
threats of enhanced punishment when it is the right to trial that is at issue. Part of the problem, I
believe, is that we lack an institutional mechanism for disentangling waiver rewards and trial
penalties, and thus for distinguishing the contributions they make to sentencing differentials. n33
Subsequently, I describe such a mechanism. Supposing [*720] that we adopted it, or something
like it, would plea bargaining have more solid constitutional footing? In other words, is the only
217
problem with plea bargaining practices in the U.S. that they mask threats by state officials to
punish defendants who insist on exercising their constitutional rights?
Far from it. We should also be concerned about the magnitude of the sentencing
differentials that prosecutors can create independently of whether they can threaten, and
with the cooperation of the courts, impose, trial penalties. Prosecutors' abilities to over-
charge, to add and drop charges, and determine sentence reductions enable them to exert
enormous pressure on defendants to enter guilty pleas. Defendants who face the difference
between custodial and non-custodial sentences, or between lengthy custodial sentences and
relatively short ones, have powerful incentives to decline to put the government's case
against them to the test. Crucially, the larger these sentencing differentials are permitted to
become, the less important will be the actual evidence state officials can produce concerning the
guilt of the individuals whom they have charged with crimes. n34 Defendants who face
formidable sentencing differentials might be advised by their attorneys that the state's evidence
against them is unlikely to convince a jury of their guilt beyond a reasonable doubt. But such
defendants will understandably be reluctant to risk trials, especially if convictions will yield
disastrous sentencing outcomes.
Here we reach the nub of the matter: current plea bargaining practices in the U.S. make it
all too easy for state officials to inflict punishment on individuals regardless of the evidence
they have against them. The jury, which in the Founders' view was a critical bulwark against
government corruption or overreaching, is effectively excised from charge adjudication by large
sentencing differentials. And though judges are supposed to verify in plea colloquies that a
"factual basis" exists for any pleas entered, it does not appear that they do so with any rigor. n35
This then means that prosecutors' assessments of probable guilt do the bulk of the work. [*721]
Moreover, prosecutors need not actually go very far toward assuring themselves that they have
charged individuals correctly or have sufficient evidence against them. They can instead rely on
their charging discretion and abilities to influence final sentencing outcomes to do most of the
work of bringing defendants to heel. It is hard to believe that the architects of the Constitution
would have felt comfortable establishing a system that placed so much power over the lives of
citizens in the hands of government officials operating without much real oversight. Whether one
believes that the proof structure of criminal trials is designed to express a strong societal
preference for avoiding errors of mistaken conviction at the expense of errors of mistaken
acquittal, or is a moral assurance device for the justified infliction of legal punishment, plea
procedures that are so indifferent to the strength of the evidence are worrisome.
Some members of the Supreme Court comfort themselves with the notion that defendants
who are willing to plead guilty simply must be, in fact, guilty. n36 Why else would defendants be
willing to plead in the first place? But this facile assumption ignores the complexity of the
defendant pool. Some, perhaps a substantial majority of the defendants willing to plead, are guilty
more or less as charged. Since we cannot expect or require perfection in charging from
prosecutors, the fact that they might, at times, mischaracterize offenders' conduct in their
charging decisions is something we just have to accept. Defendants' attorneys presumably have
some ability to work with prosecutors to refine charges so that they more accurately reflect the
crimes their clients are willing to concede that they committed. However, other defendants
facing the pressure of the sentencing differential might plead guilty though they have been
strategically and significantly over-charged by prosecutors eager to resolve cases. Plea
218
bargaining in such cases might produce excessive punishment, or significant errors in
convictions in the sense that the crimes of which individuals are convicted bear scant
resemblance to the crimes which they actually committed. Other defendants who are cowed
into pleading might believe that they are innocent, either because they believe that they did not
cross the line between legal and illegal conduct, or because they believe they have valid defenses
to the charges against them. Of course, some of these kinds of defendants will be mistaken--they
did cross the line or juries would have [*722] found their defenses unconvincing. But some
might have gained acquittals or convictions on reduced charges if seeking them was not so risky.
Finally, some defendants--and nobody knows how many--will actually be innocent of all of the
charges against them. Many of the innocent who accede to guilty pleas, as Josh Bowers has
convincingly shown, will be individuals with criminal records. n37 They will accept another
mark on their records as the price to pay for avoiding the process costs of trials or the
significantly worse sentences they might receive if they exercised their right to trial and were
convicted. A few, and one suspects that here the numbers are small, will be innocents without
criminal records. They are the unfortunate victims of such things as misidentification by
witnesses or the police, or misapprehension of the nature of their conduct by the authorities.
A properly designed and functioning plea adjudication system would be sensitive to these
differences among the defendants who indicate a willingness to enter guilty pleas. It would not be
set up to discourage all of them from exercising their right to trial, which is not to say, of course,
that it would infallibly process all who have legitimate claims to partial or full exoneration. More
than this, it is far from obvious that a plea bargaining system should be set up to discourage the
guilty-as-charged from going to trial. Nothing in the wording of the Fifth or Sixth Amendments,
for instance, suggests that the rights they describe apply only to individuals factually innocent of
crimes. We might hope that those guilty of crimes and against whom the state has amassed
considerable evidence will not put us through the costly ritual of criminal trials. But it is an
altogether different matter to take steps to sternly discourage exercise of such fundamental rights-
-and in the case of imposed trial penalties, punish them for it in seeming violation of due process
of law, since no jurisdiction with which I am familiar openly and explicitly makes the
"superfluous exercise" of a constitutional right a crime. n38
IV. Bringing Plea Bargaining Into Line with the Constitution
Summarizing, the Constitution and the history of interpretation of several of its key
provisions set up elaborate and formidable [*723] protections for individuals formally
accused of crimes by government officials. These protections bar government efforts to
force or coerce confessions. They also establish a presumption of innocence for the accused
before the members of an impartial tribunal. The government then has the responsibility to
produce persuasive evidence of the accused's guilt in a public forum, and that evidence
must be convincing beyond a reasonable doubt. Jury trials, as we have seen, serve vital
power-checking and legitimacy functions. They force government officials to put their cards
on the table, allowing other citizens to see what proof they have against those suspected of
crimes. Plea bargaining substitutes for this elaborate public ritual an occluded one in which
government officials convince individuals accused of crimes to admit their guilt based on
the creation of a plea versus trial outcome sentencing differential. The nature of the
evidence in cases resolved by guilty pleas and its role in convincing defendants to plead is
thus murky. No one other than police, prosecutors, and judges need be convinced by the
219
evidence that the government has against defendants, and judges seem too often convinced
because police and prosecutors are.
As Stephanos Bibas notes, the Sixth Amendment text says little about the character of
criminal trials. Stephanos Bibas, Two Cheers, Not Three, for Sixth Amendment
Originalism, 34 HARV. J.L. & PUB POL'Y 45, 46 (2011).
n28 I develop this distinction in greater detail in RICHARD L. LIPPKE, THE

ETHICS OF PLEA BARGAINING ch. 1 (2011).
Nancy J. King, Judicial Oversight of Negotiated Sentences in a World of Bargained

Punishment, 58 STAN. L. REV. 293 (2005).
Representation in the plea process is meaningless
Bruce A. Green, Louis Stein Chair and Director, Stein Center for Law and Ethics, Fordham
University School of Law., Duquesne Law Review, Summer 2013, 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"?,
II. Effective Representation in the Plea/Waiver Process: A Largely Symbolic Right

Today's opinions deal with only two aspects of counsel's plea-bargaining inadequacy and
leave other aspects (who knows what they might be?) to be worked out in further constitutional
litigation that will burden the criminal process. n47
One might suppose that decisions upholding criminal defendants' constitutional rights and
providing remedies for violating those rights necessarily impose burdens on the criminal process,
so that it would be axiomatic that, as Justice Scalia complains, a robust criminal procedure
jurisprudence will "burden the criminal process." But that is not necessarily so, and it is
particularly untrue of the ineffective assistance of counsel jurisprudence that Justice Scalia
targets. The principal contribution of the two recent decisions in particular is largely symbolic.
Fundamentally, Cooper and Frye address the constitutional obligations of criminal defense
lawyers, not judges, prosecutors or investigators. What is expected of a criminal defense lawyer
220
for constitutional purposes, however, is determined by prevailing professional norms. Under the
leading case, Strickland v. Washington, n48 a defendant must show two things to establish a
denial of the right to competent representation, the first being that the defense lawyer's
performance "fell below an objective standard of reasonableness." n49 Courts determine what
conduct is reasonable based on ordinary practices in the professional community, n50 which may
be codified by standards for criminal defense practice such as those of the American Bar
Association. n51 Therefore, by [*748] definition, ineffective assistance of counsel decisions add
nothing to defense lawyers' preexisting professional obligations.
Justice Scalia's dissent suggests the possibility, however, that Cooper and Frye will burden
both courts administratively and the criminal process generally by inviting new claims that will
require resources to resolve, and in some cases opening the door to needless trials of guilty
defendants. But this seems doubtful. Although decisions finding ineffective assistance of counsel
do leave open the possibility of a constitutional remedy for serious departures from the
professional norms, the Strickland requirements raise substantial hurdles. Besides showing that
defense counsel significantly erred, the defendant must show that he was prejudiced by defense
counsel's errors--that is, that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." n52 Many
convicted defendants complain about their lawyers, but most find one or both requirements to be
insurmountable. n53 Death row defendants historically have a fighting chance of overturning
their sentences or convictions for ineffective assistance of counsel, whether because death penalty
defenders are particularly unqualified, death penalty cases are particularly complicated and
expensive to defend competently, courts are particularly solicitous of defendants' rights in capital
cases, or some combination of the three. n54 The success rate for other defendants in establishing
ineffective assistance of counsel is exceedingly low. There is an abundance of academic writing
on the Sixth Amendment right, to [*749] which I have contributed, n55 and the dominant theme
is that the Strickland test is too demanding. n56 Some judges have agreed. n57 Among the
reasons are that courts strongly presume that a lawyer's questionable conduct is reasonable and
tend to assume that, unless the evidence against the defendant was extremely weak, the attorney's
errors made no difference either to the jury's verdict or the defendant's decision to plead guilty.
In the plea bargaining process, the professional norms governing defense lawyers are fairly
well-established, n58 and although lapses may occur regularly, it is by no means clear how often
lapses occur that would realistically justify a Strickland claim. The lawyer's principal task is to
assist the defendant in deciding whether to plead guilty or stand trial. n59 The lawyer is expected
to solicit as favorable a plea offer as possible, which may require attempting to establish a
credible defense or making mitigating arguments to the prosecutor. n60 The lawyer must convey
any plea offer to the client n61 and then advise the client whether to accept it,which means giving
accurate advice about the likely consequences if the defendant either accepts the plea offer or
goes to trial. n62 To give accurate advice, the lawyer will ordinarily have to interview the client,
review discovery and conduct an investigation as necessary to learn the relevant facts, and to
conduct legal research as necessary to learn the relevant law. n63
Cooper and Frye, decided in Spring 2012, n64 may have been among the rare cases in which
defense counsel demonstrably failed to meet professional expectations and the defendant received
a significantly harsher outcome as a consequence, and one that was harsh enough to justify post-
conviction proceedings. This engendered the question of whether the defendants had a
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constitutional remedy and, if so, what it would be. In other words, how, if at all, does the Sixth
Amendment right apply when lawyers allegedly provide inadequate representation in the plea
bargaining process?
The debate over whether the constitutional right to counsel has implications for a defense
lawyer's role in plea bargaining originated as early as the 1970s, well before Strickland confirmed
that the right to competent representation derives from the Sixth Amendment. Courts recognized
the defense lawyer's obligation to advise the defendant about whether to plead guilty. n65 But
although some courts were of the view that the lawyer's constitutional obligation was to assist the
defendant in making "a well-advised choice," n66 others "suggested that the function of counsel
as an advisor is limited, at least for constitutional purposes, to ensuring that a client's waiver of
[trial rights] is a knowing and voluntary act" as required by the Due Process Clause. n67
Even before the Court decided Strickland, Supreme Court jurisprudence favored the broader
view of defense counsel's constitutional role. The Court had recognized that "a counseled
defendant's decision to plead guilty . . . must rest upon his attorney's judgment regarding the
weight of the state's case; how the facts, as he understands them, would be viewed by a jury; the
likelihood that those facts would establish guilt; and the admissibility of seized evidence or
incriminating statements that contribute to the state's showing of culpability." n68 This meant that
the defense lawyer's constitutional function was not just to assure the defendant a fair process by
explaining the trial rights--a function duplicating that of the trial judge. The lawyer was also
required to protect against guilty pleas that were "poorly considered" where, for example, the
defendant was unaware that he would likely be acquitted at trial or that a guilty plea would
relinquish important collateral rights. n69 Strickland might have been read to resolve the question
in favor of the broader constitutional role insofar as it held that the reasonableness of a defense
lawyer's performance is established by prevailing professional norms, which demanded
considerably more than safeguarding constitutional rights. Subsequent Supreme Court decisions
bolstered that perception. n70 Lower courts got the message, n71 although some outliers clung to
the view that ineffectiveness in plea bargaining is irremediable because a defendant is not
"prejudiced" by losing a favorable plea opportunity. n72 Cooper and Frye presented a chance
definitively to resolve the question that technically remained open. n73
A basic understanding of the Cooper and Frye decisions, beginning with their underlying
facts, is useful in considering the decisions' legal significance. Cooper's lawyer gave legally
incorrect advice. Cooper fired a gun at the victim's head but missed, and then fired at her again,
wounding her three times. The prosecutor charged Cooper with several crimes, including assault
with intent to murder, but offered to dismiss half the charges and to recommend a sentence of
fifty-one to eighty-five months imprisonment if Cooper pled guilty. Cooper's lawyer inaccurately
advised him that he could not be found to have had the intent to murder because the shots struck
below the victim's waist. Having been led to expect an acquittal on the most serious charge,
Cooper rejected the favorable plea offer, was convicted at trial on all the charges, and received a
mandatory minimum sentence of 185 to 360 months imprisonment. That is to say, he was
sentenced to spend around eleven to thirty-five years longer in prison because he followed his
lawyer's erroneous advice. n74
Frye's lawyer failed to convey the prosecutor's written plea offer as he was ethically
obligated to do. Having been charged with driving with a revoked license, Frye faced up to four
years' imprisonment. The prosecutor wrote to Frye's lawyer offering two possible plea bargains,
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one of which would have carried a recommendation of ninety days' imprisonment, but the lawyer
failed to tell Frye about the offer before it expired. Before this matter was resolved, Frye was
arrested again for driving with a revoked license. Having lost the benefit of the plea offer, he pled
guilty to the original charges and received a three-year prison sentence. There is no guarantee
that, if Frye had known of the original offer and tried to accept it, the prosecutor would have kept
the offer on the table despite Frye's re-arrest or that the trial judge would have [*753] accepted
Frye's guilty plea and imposed the recommended sentence. But if so, the defense lawyer's lapse
meant the difference between a three-month sentence and a three-year sentence. n75
In pursuing relief based on the Sixth Amendment right to effective assistance of counsel,
neither Cooper nor Frye had much difficulty proving the inadequacy of his respective lawyer's
performance. At least in Cooper's case, prejudice seemed obvious. Cooper would have accepted
the plea bargain if he had not been advised incorrectly that, as a matter of law, he was innocent of
the most serious charge. He would have received a much lower sentence by pleading guilty. That
sounds like serious prejudice, if prejudice means an adverse outcome, which is how the Court's
majority saw it. n76 Frye's case was harder, however. Even if Frye had tried to plead guilty, he
might have lost the benefit of the proposed deal because of his subsequent arrest. The Court
remanded for consideration of whether or not Frye was prejudiced in light of this possibility. n77
"Not so fast," said the dissenting Justices. They believed Cooper was not prejudiced by the
loss of a lenient plea offer because he received a fair trial. n78 Frye even more certainly was not
prejudiced, they maintained, because he not only received a fair process--that is, a fair guilty plea
proceeding--but admitted his own guilt. n79 In their view, the defense lawyer's role, as far as the
Constitution is concerned, is not to try to mitigate the harshness of the criminal charges, but
simply to stand guard to assure that the defendant's procedural rights are protected. They reasoned
that the right to competent representation is intended to assure the defendant a fair process; that
the right is therefore not violated "unless counsel's mistakes call into question the basic justice of
a defendant's conviction or sentence;" and that defense counsel's mistakes in the plea bargaining
context do not call the fairness of a conviction into question because "a criminal defendant has no
right to plea bargain." n80 [*754]
Having found a violation of the constitutional right to competent representation, the Court
faced the tricky question of what the remedy should be when a defendant such as Cooper or Frye
proves that he missed out on a favorable plea bargain because his defense lawyer performed
unreasonably poorly. n81 In other contexts, the remedy for a violation of this right is obvious. If a
lawyer's mistakes at trial contribute to the jury's guilty verdict, a court vacates the conviction and
gives the defendant a new trial. n82 Likewise, if a lawyer's bad advice leads a defendant to plead
guilty, a court vacates the conviction. n83 The Court addressed that situation two years earlier in
Padilla v. Kentucky, n84 in which the immigrant defendant pleaded guilty to drug charges after
his lawyer wrongly assured him that deportation would not follow his conviction.
It is less clear, however, how a court should remedy the situation when a defendant misses
out on a favorable plea offer. Simply vacating the conviction, while restoring the opportunity to
plea bargain, might be unfair to the defendant, because the prosecution might not re-extend the
original offer. Ordering specific performance of the original plea agreement might be unfair to the
state, however, if the trial judge would not originally have accepted a guilty plea pursuant to the
terms of that agreement or if changed circumstances make the original plea offer inappropriate.
The Court concluded that trial courts have authority to reach an equitable resolution depending on
223
the facts of the particular case. n85 It held that the prosecution should be ordered to reoffer the
original plea agreement, and if the defendant accepts the offer, the court would then decide
whether, as a matter of discretion, to vacate the conviction and resentence the defendant under the
agreement. n86 In Cooper, Justice Scalia's dissent criticized the remedy for its "incoherence," n87
Justice Alito's separate dissent criticized the remedy for being "opaque," n88 and both suggested
that the deficiency of the remedy demonstrates that incompetence in connection with plea
bargaining does not violate the Sixth Amendment right to competent representation in the first
place. n89
The inevitable question is, what is the legal significance of the Court's opinions in Cooper
and Frye? n90 One way to approach the question is to ask whether the decisions will burden
courts with more meritorious ineffective assistance of counsel claims; another is to ask whether
the decisions will open the door to the expansion of constitutional rights or restrictions relating to
other aspects of plea bargaining, such as restrictions on prosecutors' ability to bring extremely
harsh charges to employ bargaining chips. These approaches were Justice Scalia's preoccupations.
He predicted that the Court's decisions would burden courts by inviting additional constitutional
challenges to the conduct of plea bargaining, leading to a new constitutional jurisprudence on the
duties of defense lawyers and prosecutors alike. n91
Justice Scalia has previously exaggerated the administrative burden that upholding
constitutional rights imposes on the judiciary, n92 and his dissent in Cooper was no exception.
n93 Cases in which defendants convincingly assert that they missed out on favorable plea
bargains because of defense counsel's mistakes have not come before courts very often, and there
is no reason to think that will change. To be sure, maladroit representation in plea bargaining may
be prevalent, n94 and more skillful plea bargaining will make a difference to the outcome. n95
But it does not follow that many defendants will have an ability to make the requisite showing to
gain relief under Strickland, or even have a realistic incentive to try.
Other than in rare cases such as Cooper and Frye where egregious and potentially fatal errors
demonstrably were made, most such claims will be dismissed quickly based on the
reasonableness of counsel's performance, lack of prejudice to the defendant, or both. For
example, questionable strategy in plea negotiations will not be remediable because Strickland's
reasonableness standard for assessing the defense lawyer's performance is highly deferential. n96
Likewise, it will be nearly impossible to prove prejudice other than where the prosecutor put an
explicit plea offer on the table, because the mere possibility that more effective advocacy would
have led to a favorable offer, and that the defendant would have accepted the offer, will typically
be dismissed as speculative. The proof that Cooper and Frye do not open the floodgates to
winning ineffective assistance of counsel claims is that, in jurisdictions where courts anticipated
the Cooper and Frye decisions by recognizing the possibility of a remedy when a defendant
misses out on a favorable plea offer because of defense counsel's error, n97 few convictions have
been reversed on this basis. n98
One might also be skeptical of whether Cooper and Frye will open the door to the
development of a new, expansive and burdensome constitutional jurisprudence regulating plea
bargaining in general. Some envision a new and salutary jurisprudence to address some of the
perceived unfairness of the process. n99 But there is reason for skepticism: courts in jurisdictions
that anticipated Cooper and Frye did not couple the right to effective assistance with a more
protective jurisprudence of plea bargaining generally. In any event, a constitutional jurisprudence
224
on defense and prosecution plea bargaining duties will not blossom without the Court's
acquiescence. If the day ever comes that the law begins to develop too far too fast--if lower courts
begin recognizing new federal constitutional rights and restrictions relating to plea bargaining,
such as a prosecutorial duty to refrain from overcharging--the Court can halt its development.
n100
That Cooper and Frye carry a modest cost to the criminal process does not mean that they are
insignificant. Decisions on the right to competent counsel have a signaling or symbolic
significance; they may influence criminal defense lawyers indirectly by [*758] encouraging or
discouraging particular professional conduct by defense lawyers. n101 The jurisprudence is a
mixed blessing. On one hand, it implicitly encourages defense lawyers to aim low by denying a
constitutional remedy based on lack of prejudice in many cases where the defense lawyer's
conduct was ethically and professionally improper, such as where lawyers conducted inadequate
investigations. n102 The problem is compounded by the lack of serious disciplinary enforcement
and the absence of a meaningful civil remedy when criminal defense lawyers perform
incompetently. n103 On the other hand, inadequate remedy aside, the decisions express the
importance of competence in various aspects of criminal defense representation, some of which
might otherwise be invisible. That is especially true of decisions addressing defense lawyers'
advice regarding guilty pleas. Simply by addressing and leaving open some slim possibility of a
remedy for incompetent representation in the plea bargaining process, the decisions in Cooper
and Frye signal to the defense bar that the quality of their professional conduct matters.
The two decisions also have a practical significance in that they discourage states from
circumscribing defense lawyers' roles. Imagine that the dissenting Justices had carried the day. At
least initially, defense lawyers would remain professionally obligated to provide competent
representation in the plea bargaining process consistent with the professional norms. Although the
lawyers' lapses would not be remediable, the lawyers would at least in theory remain subject to
discipline for egregious professional misconduct. But suppose a state decided to limit funding for
indigent defense by refusing to pay for work that went beyond the lawyer's constricted
constitutional function, as defined by the dissenters. A state might say, for example,
Lawyers will no longer be compensated for hours spent investigating and researching the
possible defenses before advising the defendant whether to accept a plea offer. Once a prosecutor
puts a plea offer on the table, and unless the offer is rejected, the lawyer will be compensated only
for time spent telling the defendant what he needs to know to make any guilty plea constitutional-
-for example, that he has a right t trial that he will be giving up by pleading guilty and the range
of punishment that the trial court may impose.
Frye and Cooper discourage redefining counsel's role in this manner. They presuppose that a
lawyer will fulfill the ethical duty to provide information that would be important for the
defendant to know before deciding whether to plead guilty. n104 Of course, it might seem
unimaginable that a state would attempt to cut back on indigent defense in this manner, precisely
because, as the Court recognized, plea bargaining has become such a critical stage of the criminal
process. Nonetheless, Justice Scalia's dissent dares one to imagine this possibility.
225
Court Clog Answers

226
1AR IP cases up/ SCOTUS Key

Supreme Court rulings on patent and IP law are on the rise and only
continuing to increase
Kelly ’16 (Adam G. Kelly is a nationally-acclaimed counsellor in intellectual property law with
extensive experience in the U.S. and abroad. John Marshall Law School, J.D. “The Golden Age of
Intellectual Property Law,” 10/1/16.
http://www.loeb.com/~/media/files/publications/2016/10/the%20golden%20age%20of%20inte
llectual%20property%20law.pdf)//rk
Spoiler alert: The United States Supreme Court adores intellectual property law, perhaps over all
other areas of law, and that affection continues to blossom. The court has decided over 30 cases
involving intellectual property — copyrights, patents, and trademarks — since 2010. That
number is staggering because the court had historically resolved less than 10 intellectual
property cases per decade until the 1980s and 1990s, when that number increased slightly to
about 15. In the 2000s the numbers inched up to about 20 cases, and since 2010, the numbers
have skyrocketed to over 30, with four years still remaining in the decade. Of course, this does
not include cases in which the court denied certiorari. Several reasons may explain the court’s
indisputable interest with intellectual property. Quantitatively, more intellectual property cases
have been pending in our judicial system as compared to 30 years ago. Infringement actions
have become commonplace in many district courts, as have local rules and judicially-created
standing orders to address those actions. More cases are arising from the patent and trademark
office and then appealed to the court of appeals for the federal circuit. Logically, more appeals
begat more certiorari petitions. Plus Congress has recently amended or enacted several statutes
affecting intellectual property, including the Smith – Leahy America Invents Act in 2011, the
most significant change to the patent act and the U.S. Patent system since 1952. Regardless of
the reason, the October 2016 term confirms the continued trend. Four intellectual property
cases are currently pending involving issues arising from disposable adult diapers, cheerleading
uniforms, smart phones and genetic testing kits. The first case is SCA Hygiene Products
Aktiebolag v. First Quality Baby Products, LLC, no. 15-927. The issue in SCA is whether and to
what extent a laches defense may bar a claim for patent infringement brought within the patent
act’s sixyear statutory limitations period under 35 u.s.c. § 286. Currently, this statutory
limitation co-exists with the equitable doctrine of laches under Federal circuit authority. Just
two terms ago the court addressed a similar question, but under copyright law, in Petrella v.
Metrogoldwyn-Mayer, Inc., 134 s. Ct. 1962 (2014). There, the court found that the doctrine of
laches could not be used to truncate the copyright act’s three-year limitations period. Petitioner
SCA manufactures and sells patent-protected adult incontinence products sold under the TENA®
label. Respondent first quality manufactures private label products that compete with SCA’s
product line. In 2003 the parties exchanged correspondence regarding SCA’s patent, but those
communications ceased. Following that exchange, the PTO reexamined SCA’s patent from 2004
to 2007 and eventually confirmed validity in 2007. SCA then sued first quality for patent
infringement in 2010. But both the district court and the federal circuit found that the equitable
laches doctrine barred SCA’s infringement claim, despite the statutory six-year period under
227
section 286. The court has not yet set a date for oral argument In the second case, Star
Athletica, LLC v. Varsity Brands, no15-866, the court must decide the appropriate test for
determining when a feature of a design of a useful article is protectable under copyright law.
under the copyright act “the design of a useful article”— such as a chair, dress, or uniform —
cannot be copyrighted. 17 U.S.C. § 101. and the design of the article’s component features or
elements cannot be copyrighted either, unless capable of being “identified separately from, and
… existing independently of, the utilitarian aspects of the article.” Id. appellate circuit courts, the
U.S. Copyright Office and academics have proposed at least nine different tests to resolve this
separability question. In this case, the sixth circuit apparently rejected them all and created a
tenth. petitioner star athletica, who is a relative newcomer to the cheerleading-uniform market,
published its first catalog in 2010. shortly thereafter, respondent Varsity Brands sued for
copyright infringement of five of its two dimensional uniform designs. no date is set for oral
argument in this case either. The third case is Samsung Electronics Co. V. Apple, no. 15-777, in
which the question is, when a patented design is only for a component of a product, whether an
award of infringer’s profits should be limited to profits attributable to that component. Design
patents may properly claim “any new, original and ornamental design for an article of
manufacture.” 35 U.S.C. § 171. When a design patent is infringed, a district court may award
infringer’s profits “to the extent of [an infringer’s] total profit, but not less than $250,” provided
that the design-patent holder “shall not twice recover the profit made from the infringement.”
35 U.S.C. § 289. In 2011 Apple sued Samsung for violating three design patents directed to smart
phones. After a jury trial and a partial retrial on damages, the juries awarded Samsung’s entire
profits of $399 million on 11 smartphones to Apple. The federal circuit affirmed, holding that
section 289 automatically entitled Apple to recover all of Samsung’s profits made from sales of
any product found to exhibit the patented designed, regardless of the design’s contribution to
that product’s value or sales. Oral argument before the Supreme Court is set for October 11. The
last case is Life Technologies Corporation v. Promega Corporation, no. 14-1538, and it addresses
the limits of patent infringement arising from supplying components from the united states to a
multi-component invention sold overseas. The patent act provides that a party may not
“suppl[y] . . . In or from the united states all or a substantial portion of the components of a
patented inventions, . . . In such manner as to actively induce the combination of such
components outside the united states.” 35 U.S.C. § 271(f)(1). Promega licensed a patent on
technology for replicating DNA. That technology is incorporated into genetic testing kits, which
generate DNA profiles used in clinical research. Life technologies licensed that technology from
Promega for use in certain applications. In 2010, Promega sued life technologies for patent
infringement for selling test kits into unlicensed fields and sought damages for worldwide sales.
At trial, the jury returned a verdict for Promega and awarded damages for “all of life tech’s
worldwide sales.” But the district court granted judgment as a matter of law to life technologies,
holding that Promega had failed to present sufficient evidence to sustain a jury verdict under §
271(f)(1). In a split decision, the Federal circuit reversed. Distinguishing the court’s prior opinion
in Microsoft Corp. V. AT&T Corp., 550 U.S. 437 (2007), the Federal circuit reasoned that a single,
commodity component can be a “substantial portion of the components” under § 271(f)(1). The
respondent Promega’s brief is due on October 24, 2016, and no date is currently set for oral
argument. Beyond the October 2016 term, the volume of currently pending certiorari petitions
228
strongly suggests that the court will remain active in intellectual property. For example, three
patent-related petitions are likely candidates for granted certiorari because the Solicitor General
will likely be participating: Impression Products, Inc. v .Lexmark Int’l, Inc., no. 15-1189
(unreasonable restraints on downstream uses); Sandoz Inc. v. Amgen Inc., no. 15-1039 (effect of
BPCLA notice requirements on six-month exclusivity post-Fda approval), and GlaxoSmithKline v.
King Drug Co. of Florence, no. 15-1055 (antitrust reverse payments). But the solicitor general is
unlikely to comment until after the presidential election. Including those three petitions, 25
patent related petitions remain pending and more petitions are anticipated to be filed later this
year. That number does not include other intellectual property-related petitions, such as Lee v.
Tam, no. 15-1293, where the court will decide whether the federal government’s ban on
offensive trademarks — the rule used to notably revoke the Washington Redskins registrations
— violates the First amendment.
229
Flooded Now – Adaptation Solves

RIP this DA – patent decisions flood the docket now but they just adapt by
allowing more to be argued – only we have empirics
Williams 6-20 — (Eliot D. Williams, Lawyer @ Baker Botts whose practice focuses on
intellectual property, "Federal Circuit Faces Explosion of PTAB Appeals", Baker Bott, 6-20-2017,
Available Online at http://www.lexology.com/library/detail.aspx?g=b2a92d7c-11c2-4df2-83df-
fe973534dcfa, accessed 7-14-2017, JSO)
Appeals from Patent Trial and Appeal Board decisions have flooded the docket of the Court of
Appeals for the Federal Circuit (CAFC) in the last few years, substantially altering the makeup of
that court’s docket. Based on publicly available docket data, the number of appeals from the
Patent and Trademark Office (PTO) pending at the CAFC has exploded from just over 100 in
2013 (when the first PTAB Trials under the America Invents Act were still winding their way
through the PTAB) to over 630 PTO appeals pending as of May 2017. Over that same period,
PTO appeals have gone from 11% of the CAFC’s docket, to over 40%. In contrast, appeals from
the district courts have dropped from 44% of the CAFC’s docket to under 35%. As the graph
indicates, this dramatic increase in appeals from PTO proceedings has not been offset by a
substantial decrease in district court appeals. As a result, the number of total cases pending at
the CAFC has increased over 50% from May 2013 to May 2017. This change to the CAFC’s
caseload has already had an obvious impact on the court. In particular, the court recently began
expanding its argument calendar to six days of argument per month, rather than the traditional
five days, permitting additional cases to be calendared for argument. So far, the change to the
court’s caseload has not substantially impacted the court’s time to resolution statistics.
However, assuming this situation persists, it would not be surprising to see a lengthening of case
pendency times.
230
UQ – Rule 36 Triggers I/L

Decisions without opinions rising now – the internal link is nuq
Bultman 3-1 — (Matthew Bultman, reporter @ Law360, "Fed. Circ. Issuing More 'Hidden
Decisions' Amid Case Influx", Law360, 3-1-2017, Available Online at
http://www.skgf.com/uploads/1561/doc/Fed__Circ__Issuing_More_Hidden_Decisions_Amid_C
ase_Influx.pdf, accessed 7-13-2017, JSO)
The number of patent cases where the Federal∂ Circuit affirmed a ruling without issuing an
opinion continued to climb in 2016, adding fuel to the debate∂ over whether these "hidden
decisions" are a growing problem or a natural and necessary way for the∂ court to deal with a
surge of cases. According to statistics compiled by Law360, the∂ rate at which Federal Circuit
panels affirmed∂ patent decisions from the Patent Trial and∂ Appeal Board or a district court
without∂ explaining their reasoning appears to have∂ stabilized after a recent upswing. The rate
was∂ 43 percent last year, almost identical to what it∂ was in 2015. But as court's caseload
continues to swell, this∂ has translated to a larger number of such∂ judgments. The appeals
court last year issued∂ summary affirmances in patent appeals 179∂ times, up from 155 such
decisions in 2015 and∂ almost double the number from 2013. The increase, a source of concern
for some, has∂ no doubt left more parties walking away from∂ the court feeling dissatisfied
after an appeal.∂ Speaking to being on the losing end of such a∂ judgment, John Dragseth, a
principal at Fish &∂ Richardson PC, put it like this: "It's not as bad as∂ your dog dying, but it's
close." 'Affirmed' Federal Circuit rules give the court the authority∂ to issue an affirming
judgment without an∂ opinion. These so-called Rule 36 decisions have ∂ just a single word —
"affirmed" — and lack any explanation of the court's holding.∂ There is an unwritten rule that
litigants not represented by attorney will get an opinion, several∂ attorneys said. Otherwise, a
series of conditions exist. Generally, Rule 36 is used "where is it not∂ necessary to explain, even
to the loser, why he lost," former Federal Circuit Chief Judge Howard Markey∂ once said. The
increasing volume of Rule 36 judgments isn't necessarily a surprise. Several court∂ observers
predicted as much in the wake of the America Invents Act, which created popular new∂
proceedings for challenging patents, and a new body, the PTAB, to conduct them. A surge of
appeals from the U.S. Patent and Trademark Office since the passage of the act has had∂ a
noticeable effect on the Federal Circuit's docket. Since AIA reviews became available in 2012,
the∂ number of patent cases decided by the court has steadily risen, from 264 in 2013 to 416 in
2016.∂ With the increasing demands on judges and their clerks, Rule 36 appears to be crucial tool
for the court,∂ said Jon Wright, co-chair of the appellate practice at Sterne Kessler Goldstein &
Fox PLLC. "When you look at the sheer volume of cases that it has ... if the court had to write
an opinion, even a∂ nonprecedential opinion, in every case or a majority of the cases, the
functioning of the court would∂ grind to a halt almost," he said. "It would be impossible for
the court to do." Some commentators contend the court is using Rule 36 in cases that are not
appropriate for a summary∂ affirmance, compromising involved parties' right to a full and fair
appeal. There are also those who say∂ the judgments represent missed opportunities for the
court to provide clarity on some developing areas∂ of the law, such as PTAB trials and patent
eligibility under Section 101 of the Patent Act.∂ "Hiding behind this procedural tool that makes
their docket more manageable only allows the real∂ problems facing the patent system to fester
231
like an open wound," Gene Quinn, a patent attorney, and∂ Peter Harter, founder of consulting
firm The Farrington Group, wrote in a recent post on Quinn's∂ IPWatchdog blog. But others
aren't particularly concerned about the court's use of Rule 36. "The fact there is a consistent
percentage means the Federal Circuit is also putting out more opinions,"∂ said Baker Botts LLP
partner Michael Hawes, who has clerked for the court. Indeed, in 2016 the Federal Circuit wrote
237 opinions in patent cases, up from 199 the year before, and∂ an even bigger jump from 2013.
Dragseth, another former law clerk, said there was no indication the∂ court was "lolling off." "I
don't think there's a reason to believe that the judges have failed in trying to set a balance
here," he∂ said. "And they're in the best position to set that balance between, where do they put
in the extra effort∂ and where do they put in less effort." Based on the data, it appears that
extra effort more often comes in cases arising from district court∂ rather than the PTAB. Just
over half of the PTAB appeals in 2016 were affirmed with a Rule 36 order, according to Law360's
∂ statistics. This is down from 63 percent in 2015, but still notably higher than the 36 percent of
district∂ court appeals affirmed without an opinion. The disparity is perhaps best explained by
the level of deference given to PTAB decisions, attorneys said.∂ For PTAB decisions, the court
uses the so-called substantial evidence standard of review, a lower level of∂ scrutiny than the
"clear error" standard used for district court decisions. "Many cases coming out of the office,
because you have the level of deference that you have, just don’t∂ merit the time and effort for
the court to explain every case," Wright said. Igor Timofeyev, a partner at Paul Hastings LLP,
noted that PTAB decisions also don't deal with∂ infringement or other issues that can arise in
district court. "District court decisions generally have more issues there, so it may be more
difficult to dispose of a∂ number of district court cases under Rule 36," he said.
232
Clog Now – Patents

Patent cases are piling up – approaching a crisis for the tech industry
Parr ‘12 (Ben Parr, BA PoliSci @ Northwestern, award winning journalist, April 4, 2012 “Why
the coming patent crisis is inevitable The reason is simple: there isn't enough political will or
pressure to institute massive patent reform without a crisis to rally around.”
https://www.cnet.com/news/why-the-coming-patent-crisis-is-inevitable/)//rk
A week isn't complete in the tech industry without somebody suing somebody else over
patents. This time, Facebook is countersuing Yahoo, charging that Yahoo violated 10 of its patents. This move, of course, comes less than a month
after Yahoo sued Facebook for allegedly infringing on 10 of its patents. Facebook's countersuit shouldn't surprise anybody; it was always going to fight
fire with fire, especially since Yahoo started this unnecessary fight. It's the same reason Facebook purchased 750 patents from IBM last month -- it
needed more ammunition in a patent arms race that is quickly escalating. But I'm shocked by some of the patents over which these two companies are
suing each other. One of Yahoo's patents focuses on the "optimum placement of advertisements on a webpage", while Facebook has two patents that
cover a "system for controlled distribution of user profiles over a network." Yahoo owns the patent for a "method to determine the validity of an
interaction on a network", but "generating a feed of stories personalized for members of a social network" belongs to Facebook. You
really can
receive a software patent for almost anything these days, it seems. Facebook and Yahoo aren't the only
ones collecting patents and threatening to use them like stockpiled nuclear weapons, though. Here are just some of the patent
disputes that have made headlines in the last two weeks: Apple and Samsung, Microsoft and Motorola, RIM and NXP, Oracle and
Google, and Tivo and Motorola. Patents
have played an important role in protecting an inventor's
intellectual property and fostering innovation throughout history. However, their usefulness in
software is far more limited, and in recent years has simply become damaging to innovation,
thanks to patent trolls using IP they've acquired to sue smaller tech companies and make a quick
buck. Patent law simply wasn't designed for the always changing, rapidly developing world of
software. Inventing a way for "generating a feed of stories" isn't the same as inventing a new
type of fuel injection system or a new ultralight alloy for space travel. But software companies
file patents like crazy because companies like Yahoo get desperate and start suing, and your
only defense is to have your own stockpile of patents that will help you negotiate a settlement
faster. It's the tech industry's version of mutually assured destruction. And all the while, the
patent situation inches closer toward a crisis that will make the SOPA controversy look like a
walk in the park. At some point in the future, a company is going to skip the settlement and use
the courts to shut down a popular and universal feature on the Web's top domains, simply
because it has a patent that says it came up with the notion first. It will be a shock that
reverberates all the way to the U.S. government and the World Trade Organization.
Patent lawsuits are on the rise – clarity is key to American companies’ success
internationally
Lee 16 (Michelle Lee, Director of U.S. Patent and Trademark Office interviewed by Queenie
Wong Q&A: Director of U.S. Patent and Trademark Office Michelle Lee on fostering innovation
http://www.mercurynews.com/2016/08/10/qa-director-of-u-s-patent-and-trademark-office-
michelle-lee-on-fostering-innovation/)//rk
SAN JOSE — Growing up in Silicon Valley, amid the apricot orchards and nascent semiconductor companies, Michelle Lee saw the hard work that comes with creating something
said it wasn’t uncommon to see others in her neighborhood invent

new. The daughter of an engineer, Lee
something, file a patent to secure more venture capital funding and then start a company.
“Some of those companies succeeded and some of them didn’t. But the few that did really
revolutionized the world and the way we live,” she said. “That was very exciting and I knew I always wanted to be a part of
233
that.” Lee, the first woman to lead the U.S. Patent and Trademark Office, sat down with this newspaper to chat about diversity, her office’s priorities,
the rise of patent infringement lawsuits and thinking globally. This interview has been edited for clarity and length. Q You’re the first woman to lead the
U.S. Patent and Trademark Office. What is it like being a woman in a male-dominated field, and is it different in law and government versus in tech and
science? A For much of my life, I’ve tread a path that did not have people who looked like me. When I was at MIT, women were in the minority and that
was at the undergraduate level. In electrical engineering and computer science, it’s even more so. When you enter the legal profession, particularly
patent litigation, it helps to have a technical background. There weren’t many women in these roles and in leadership positions whether it be in
technology, a top tier law firm or even in the government. It’s something I’m aware of and that’s why I launched initiatives such as “All in STEM”
because I hope more girls enter STEM professions and stay for as long as it’s appropriate for them. At the U.S. Patent and Trademark Office, we do a
decent job. About 40 percent or so of our execs at the senior level are women. Compare that with the private sector and you’ll see there’s a difference,
but we can still do more. I think it’s a matter of economic imperative, not just a social one, that we nurture and develop all of our talent. Q Is your office
doing anything to increase the number of women patent holders? A If you look at a study that was conducted over I think a 30-year period,
fewer than 15 percent of U.S.-based inventors listed on a patent were women. At the current rate, it will take another 140 years to
equalize and reach parity with male inventors. That’s another reason why I launched the “All In STEM” initiative. Getting a patent
gives you respect and recognition. It also means that you’re more likely to get venture capital funding to start a business based on
that patented technology. The U.S. Patent and Trademark Office worked with a number of organizations to help create a Girl Scout
patch on intellectual property. It’s important that we get our youngsters excited about these issues early on. And for the girls, that
we get an increasing number in the pipeline who work their way up in their careers. The attrition rate for women in the STEM
profession is higher compared to the non-STEM profession. That’s something that’s worth looking at and where we can make
improvements. Q A recent report by the U.S. Government Accountability Office noted that patent infringement lawsuits are on
the rise and patents can be unclear and overly broad. Do you agree with these findings and what is your office doing to
improve the quality of patents that are issued? A Even before that study came out, I launched the Enhanced
Patent Quality Initiative. Not because I believe that the agency was not issuing good quality
patents. I think the agency has been doing a good job and especially recently a better job. But
our backlog was going up, and through a lot of hard work from my predecessors and my team
that backlog has been going down. In fact, many of the recommendations that they mentioned,
we were already working before the report published. Q Why do you think patent infringement lawsuits have increased
so much in the last couple of years and what role does your office play in this? A That’s a very complicated question. The fact of the matter
is that intellectual property rights are more valuable now than ever before. The most valuable
assets of the most valuable companies these days is not the factory, inventory or machines. It’s
the brand, processes, the algorithms, the designs. It’s not surprising that there will be fights
over who owns what because having rights to it entitles you to a certain portion of the market
share. Our goal and the administration’s goal is to eliminate the needless and abusive skirmishes and create an environment where companies can
flourish. Q What are some of your other top priorities this year? A Making sure that American
companies can confidently sell and export their products overseas. It’s important that they do
so because there’s huge markets out there beyond the borders of the United States. We want
our American companies to be able to tap into that and they will only do so with confidence if
there are strong protections for their intellectual property. Q Your office also meets with other patent and trademark
offices in Korea, Japan, Europe and China. What was the takeaway from this year’s annual gathering? A With the economy being as global as it is,
there’s no way that a company is filing patent applications only in the United States if they’re eyeing the potential of foreign sales. We work with many
offices across the globe to make sure that we’re not duplicating each other’s efforts. To the extent that we can streamline and reduce the redundancy
and duplication — not rubber stamp the other’s office’s work — but take a look at what they’ve done and refine it in our examination process then
we’ll produce a better quality product.
234
AT Clog – A/C
There are alt causes to a clogged docket.
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,
https://www.law.upenn.edu/journals/conlaw/articles/volume6/issue2/Stern6U.Pa.J.Const.L.377
(2003).pdf, accessed on 7/12) AB
This rise in litigation is attributable to many sources. First, the United States population has grown
since 1960," from about 179 million people in that year 66 to about 281 million in 2000,67 roughly a fifty-seven percent increase.
Naturally, this is not enough to account for the caseload rise on its own-after all, the caseload of the courts of appeals rose more
than thirteen-fold from 1960 to 199568 Second, there have been congressional sources of the rise in
caseloads. Since 1960, Congress has passed two laws-Title VII of the Civil Rights Act of 196469 and the Age Discrimination in
Employment Act of 1967 7 -that have created civil remedies available to private parties for emloyment discrimination that are
enforceable in the federal courts. Furthermore, in addition to other statutes creating private rights of action,72 federal regulation
has grown in the late 73 twentieth century, which has created additional rights of action. Third,
there are, of course, the
courts themselves. The Warren Court "enormously enlarged the number of rights upon which a
suit in federal court could be founded and... strengthened their enforcement., 74 That Court also gave
new readings to two key statutesthe Habeas Corpus Act of 1867 7' and the Ku Klux Klan Act of 1871 76 -that gave rise to a vast
number of federal suits. Although the Burger Court was generally less eager to allow additional litigation, it created additional
judicial remedies, such as those for constitu- 78 tional violations by federal officers. Finally,
there is another set of
causes for the rise in federal court litigation, such as a lower inflation-ad)justed amount in
controversy requirement for diversity jurisdiction, 9 a relaxation of justiciability doctrines,8 0 and
a drop in the cost of legal services and an increase in their availability."
235
AT Floodgates
The floodgates argument is wrong—history checks.
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,
https://www.law.upenn.edu/journals/conlaw/articles/volume6/issue2/Stern6U.Pa.J.Const.L.377
(2003).pdf, accessed on 7/12) AB **edited for glang**
One of the most easily identifiable problems with the floodgates argument is that it is rarely, if ever, followed by a true analysis of
the potential litigation of which it speaks. That is, one response to a floodgates argument might be, "Are you sure that a contrary
position would yield a flood of litigation?" 82
This criticism is frequently leveled against the floodgates argument, especially in the realm of tort litigation. For example, as one
commentator has argued:
The "floodgates of litigation" argument has proven wrong time and again. The lifting of the
"impact" rule in rewarding damages for mental anguish, allowing third parties to recover under
contracts, and the recognition of the right to privacy, were all prophesied to overwhelm the
courts with frivolous claims. They have not. This argument, one should think, is relatively strong. While the
floodgates argument is generally based on policy considerations,8 5 policy arguments are rarely
so indeterminate. While moral arguments are certainly not precise--one cannot quantify, say, "fairness" or
'justice"-they are simply used differently. That is, when a judge says that a decision "promote [s] justice,"8 6 he
or she [they] is not speaking about a tangible, actual result. In contrast, when a judge expresses that a
decision will open the floodgates of litigation, he or she [they] is saying that there will be actual,
cognizable caseload results from the decision. Given how often the floodgates do not open
when we are warned that they will,"' making the argument without a proper foundation is
dangerous. While there certainly are situations in which a judge should consider the implications of a decision on his or her
[their] caseload, 8 doing so without considering the factual bases of those implications is problematic.'8 9 And while uncertainty is
an unavoidable part of the law,' 90 the language with which the floodgates argument is regularly employed expresses anything but
conjecture and uncertainty. The arguments are forceful; they are intended to conjure "[i] mages of a destructive, elemental
force."'9' After all, as Judge Posner notes, "So
irregular has been the growth of the caseloads of each of the
three tiers of the federal judiciary in the past, and so many and poorly understood are the
causes of changes in judicial caseloads, that it is impossible to make responsible predictions
about future changes.' 92 The failure of judges to recognize this limitation of the argument
reduces the weight afforded thereto.

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1

Millennial Speech & Debate

Most Cases are Plea Bargained 4

Pleas Fall Under Criminal Procedure Rules 5

“Plea Bargaining Defined” 14

Better to Improve Plea Process 18

General Improve Plea Bargaining Counterplans 24

Court Monitoring Counterplan 49

Offset Prosecutorial Advantage 50

Answers to: Supreme Court Won’t Allow Limits on Plea Bargaining 52

Plea Bargaining Generally Good 55

Plea Bargaining Good – General Benefits 56

Plea Bargaining Good for Defendant -- Dignity 61

Plea Bargaining Good for Defendant – Process Protections 64

Plea Bargaining Good – Restorative Justice 68

Answers to Objections to ____ Proposal – Plea Bargaining as Dialogue 70

Restorative Justice Good 74

General Fairness/Due Process Answers 75

Extensions – Lashout Impact 89

Terrorism DA – Resource Trade-Off Links 90

Terrorism DA – Resources Uniqueness 91

Court Clog Shell 92

Politics/Prosecutorial Resources Links Extensions 97

Court Clog IP Uniqueness 99

Court Clog Impact Extensions 100

Court Clog D-Rule 101

2NR Impact extensions 103

Economy – Patent Litigation 109

Economy – Generic 111

Small Business – Meltdowns 113

Innovation – Patent Litigation 116

2NC IPR Impact -- Link Module 118

2NC IPR Impact -- Economy Impact 119

2NC IPR Impact -- Competitiveness Impact 120

2NC IPR Impact -- Biotech 122

2NC IL – Democracy/Econ 123

2NC IL – Trade 125

2NC IL – Innovation 126

2NC IL – SCOTUS 127

Legal Reforms Fail to Solve 129

Mental Competence Flaw 141

Neoliberalism Bad Advantage 143

Racism Advantage – Prior Arrests Link 161

Racism – General Links 164

Racism – Disproportionate Incarceration Links 169

Injustice Advantage – General 165

Injustice Advantage – The Innocent Plead Guilty 171

Mass Incarceration Advantage 175

Incarceration Impacts 177

Racism Impacts -- Consequential 187

Racism Impacts -- Moral 191

Racism Outweighs Other Impacts 193

Racism Impacts -- Discrimination 197

Racism Impacts – Whites Responsible 198

Answers to: Courts Correct for Any Racial Bias 201

Answers to: Plea Bargaining Helps Defendants 194

Answers to: Defendants Can Challenge Bad Deals 200

Reforms Counterplan Answers 205

Court Clog Answers 224

1AR IP cases up/ SCOTUS Key 225

Flooded Now – Adaptation Solves 228

UQ – Rule 36 Triggers I/L 229

Clog Now – Patents 231

AT Clog – A/C 233