About the Author: Devin Creed after debating for years in the NCFCA  will be attending Hillsdale College this Fall. In 2009-2010, Devin, with his partner Andrew Min, dominated Region 10 and the rest of nation, winning the Massachusetts Open in addition to many other tournaments and coming in 7th place at the National Championship in Virginia Beach.

1AC: The Case for Flogging (Bring the Pain!)

By Devin Creed

America’s prisons are in a sorry state. According to the bipartisan Commission on Safety and Abuse in America’s Prisons in 2006:

“Within three years of their release, 67% of former prisoners are rearrested and 52% are re-incarcerated, a recidivism rate that calls into question the effectiveness of America’s corrections system, which costs taxpayers $60 billion a year. Violence, overcrowding, poor medical and mental health care, and numerous other failings plague America’s 5,000 prisons and jails.”

With this in mind, my partner and I stand Resolved: The United States Federal Government should significantly reform its criminal justice system.

Today, we will be presenting an alternative to the present prison system. It is not meant to replace the system, but to supplement it by easing overcrowding in prisons and the problems that go along with that. First, let’s look at the Failures of the status quo in regards to prisons:

Failure 1. Violence and disease plague US prisons

a) Violence

John Gibbons and Nicholas Katzenbach (with various other researchers, attorneys, and witnesses) June 2006, “Confronting Confinement:A Report of the Commission on Safety and Abuse in America’s prisons” http://www.prisoncommission.org/report.asp

“Finding: Violence remains a serious problem in America’s prisons and jails. There is disturbing evidence of individual assaults and patterns of violence in some U.S. prisons and jails. Corrections officers told the Commission about a near-constant fear of being assaulted. Former prisoners recounted gang violence, rape, beatings by officers, and in one large jail, a pattern of illegal and humiliating strip-searches. Former Florida Warden Ron McAndrew described small groups of officers operating as “goon squads” to abuse prisoners and intimidate other staff. And in February, 2006, while the Commission was gathered in Los Angeles for a final hearing, more than a thousand prisoners were attacking each other in the Los Angeles County jails, days of violence that the press described as riots. At that hearing, California corrections Secretary Roderick Hickman told the Commission: “Quite frankly, no one denies that violence occurs in prisons and jails in this country.”

b) Disease

John Gibbons and Nicholas Katzenbach (with various other researchers, attorneys, and witnesses) June 2006, “Confronting Confinement: A Report of the Commission on Safety and Abuse in America’s prisons” http://www.prisoncommission.org/report.asp

“Finding: High rates of disease and illness among prisoners, coupled with inadequate funding for correctional health care, endanger prisoners,staff, and the public. Much of the public dismisses jails and prisons as sealed institutions, where what happens inside remains inside. In the context of disease and illness, which travel naturally from one environment to another, that view is clearly wrong. Left untreated, staph infections and diseases such as tuberculosis, hepatitis C, and HIV directly affect our families, neighborhoods, and communities. As a result of poverty, substance abuse, and years of poor health care, prisoners as a group are much less healthy than average Americans. Every year, more than 1.5 million people are released from jail and prison carrying a life-threatening contagious disease. At least 350,000 prisoners have a serious mental illness. Protecting public health and public safety, reducing human suffering, and limiting the financial cost of untreated illness depends on adequately funded, good quality correctional health care. Unfortunately, most correctional systems are set up to fail.”

Failure 2. The prison system is ineffective

a) Little impact on crime despite rising incarceration

Reuters News, November 2007, “US prison system a costly and harmful failure: report” (The report was produced by the JFA Institute, a Washington criminal-justice research group, and its authors included eight criminologists from major U.S. public universities) http://www.reuters.com/article/2007/11/19/us-usa-prisons-idUSN1841666120071119

“The number of people in U.S. prisons has risen eight-fold since 1970, with little impact on crime but at great cost to taxpayers and society, researchers said in a report calling for a major justice-system overhaul.

The report on Monday cites examples ranging from former vice-presidential aide Lewis “Scooter” Libby to a Florida woman’s two-year sentence for throwing a cup of coffee to make its case for reducing the U.S. prison population of 2.2 million — nearly one-fourth of the world’s total.”

b) Incarceration makes criminality worse

Prof. Peter Moskos (Assistant Professor of Law and Political Science, John Jay College of Criminal Justice; PhD, Sociology, Harvard University; MA, Sociology, Harvard University; BA, Sociology, Princeton Universit), April 24^th 2011, “In Defense of Flogging” http://chronicle.com/article/In-Defense-of-Flogging/127208/

“Because not only does incarceration not “cure” criminality, in many ways it makes it worse. From behind bars, prisoners can’t be parents, hold jobs, maintain relationships, or take care of their elders. Their spouse suffers. Their children suffer. And because of this, in the long run, we all suffer. Because one stint in prison so often leads to another, millions have come to alternate between incarceration and freedom while their families and communities suffer the economic, social, and political consequences of their absence.”

c) Need an alternative

Prof. Peter Moskos (Assistant Professor of Law and Political Science, John Jay College of Criminal Justice; PhD, Sociology, Harvard University; MA, Sociology, Harvard University; BA, Sociology, Princeton Universit), April 24^th 2011, “In Defense of Flogging” http://chronicle.com/article/In-Defense-of-Flogging/127208/

“Incarceration, for adults as well as children, does little but make people more criminal. Alas, so successful were the “progressive” reformers of the past two centuries that today we don’t have a system designed for punishment. Certainly released prisoners need help with life—jobs, housing, health care—but what they don’t need is a failed concept of “rehabilitation.” Prisons today have all but abandoned rehabilitative ideals—which isn’t such a bad thing if one sees the notion as nothing more than paternalistic hogwash. All that is left is punishment, and we certainly could punish in a way that is much cheaper, honest, and even more humane. We could flog.”

Let us examine this alternative of flogging as we turn to the:

Plan

Mandate 1. The US Congress will legalize flogging as an alternative to prison sentencing. Prisoners will decide if they want to serve time in prison or if they would like to be flogged.

Mandate 2. Standards: The prisoner must have the physical ability to withstand flogging without death. A ratio of 2 lashes per year will be enforced.

Mandate 3. The most dangerous criminals such as child molesters and serial killers will not have the option of being flogged to escape prison sentencing.

The plan will be enforced the Department of Justice. Funding comes from Normal Means. The States will be free to enforce the measures of this plan as they see fit.

Let’s turn to advocacy. Our plan is fully advocated by PhD Peter Moskos:

Choice of 2 lashes per sentenced year

Time Magazine, June 27^th 2011, “Should Flogging Be an Alternative to Prison?” http://www.time.com/time/nation/article/0,8599,2079933,00.html

Flogging, Moskos argues, is an appealing alternative. Why not give convicts a choice, he says: let them substitute flogging for imprisonment under a formula of two lashes for every year of their sentence.

Advocacy: Medical examination

Prof. Peter Moskos [Assistant Professor of Law and Political Science, John Jay College of Criminal Justice; PhD, Sociology, Harvard University; MA, Sociology, Harvard University; BA, Sociology, Princeton University]: “In Defense Of Flogging” Published in 2011: [Google Books] (JE)

“The actual flogging I propose is based on the Singapore and Malaysian models, but it’s different in several important ways. Once you consent to be flogged- a luxury you don’t have in Singapore or Malaysia- you’d be led into a room where an attending physician would conduct an examination to make sure you’re physically fit enough to be flogged, that you won’t die under the intense shock of the cane. The punishment would not be a public spectacle but would not be closed to the public. There would be perhaps a dozen spectators, including bailiffs and other representatives of the court, a lawyer, a doctor, perhaps a court reporter, and maybe a few relatives of both parties, including the victim. After the doctor’s approval, a guard would tie your arms and leg to a trestle-like whipping post designed specifically for this purpose. This strange piece of furniture resembles a large and sturdy wooden artist’s easel, but in place of a painting or canvas, you would be tied somewhat spread-eagle to the front. Once the guard takes down your pants and adds a layer of padding over your back (to protect vital organs from errant strokes), the flogging would begin. An expert trained in the use of the cane would lash your rear end for the prescribed number of times. This flogging description from a Singapore newspaper captures the quick brutality of the procedure:”

Our plan leads to several

Advantages

Advantage 1. Convicts get on with their lives and do not have to experience the horrors of prison. Keep in mind that according to the harms, prison actually makes criminality worse.

Time Magazine, June 27^th 2011, “Should Flogging Be an Alternative to Prison?” http://www.time.com/time/nation/article/0,8599,2079933,00.html

“There would, he [Moskos] says, be advantages all around. Convicts would be able to replace soul-crushing years behind bars with intense but short-lived physical pain. When the flogging was over, they could get on with their lives. For those who say flogging is too cruel, Moskos has a simple retort: it would only be imposed if the convicts themselves chose it.”

Advantage 2. Society benefits and prisons would no longer be crowded

Time Magazine, June 27^th 2011, “Should Flogging Be an Alternative to Prison?” http://www.time.com/time/nation/article/0,8599,2079933,00.html

“At the same time, Moskos says, society would benefit. Under his proposal, the most dangerous criminals would not be eligible for flogging; the worst offenders, including serial killers and child molesters, would still be locked up and kept off the streets. But even so, he guesses the prison population could decline from 2.3 million to 300,000. That would free up much of the $60 billion or more the U.S. spends on prisons for more socially useful purposes.”

About the Author: Daniel Sheahan has competed in Team Policy debate in NCFCA/Stoa for many years. In 2011, Daniel placed 15th Team Policy speaker and 14th Team Policy team at NITOC, the Stoa national championship.

1AC: Red Light Cameras

By Daniel Sheahan

(Pick your preference on Opening Quote/Definitions)

Inherency: Red Light Cameras

Red Light cameras are a technology used by state and local governments to detect red light violations.  According to:

Radar Detector App, a database of Red Light Camera’s nationwide “Red Light Camera’s” 2010 http://webcache.googleusercontent.com/search?q=cache:http://radardetectorapp.com/redlightcameras/

_{“If you are interested in beating red light cameras, you must first know} [H]ow red light cameras work. A high resolution camera is placed somewhere in the intersection. _{Often you can see these cameras mounted on poles along the side of the road. Other times they will be right on top or beside the light itself.} The camera uses a sensor to detect cars passing through the intersection. If it detects the presence of a car in the intersection when the light turns red, it snaps a high quality photograph. _{Depending on the setup, it will take a front shot showing your face and license plate and also a rear shot showing the plate.} The only way to detect the presence of these cameras and avoid them is to know where they are.”

 Unfortunately, the governments installing these cameras oftentimes don’t care about actually fighting red light violations and protecting their citizens – they care more about getting the fines from a red-light runner.  Many local governments have even come to guarantee an annual quota of revenue they expect to generate from the red light cameras, which leads to:

a. Cameras Used For Revenue

Phillips/Webster, a Washington Based Consumer Attorney Firm Specializing in Automobile Fines and Accidents “Washington Car Accident Lawyers: Federal Commission Reviews Red Light Cameras” July 1st, 2010, http://www.phillipswebster.com/blog/2010/07/washington-car-accident-lawyers-federal-commission-reviews-red-light-cameras/

“Officials on the east coast, particularly in the D.C., Maryland and Virginia areas, _{where nearly 300 cameras already exist,} have penciled millions into their budgets in expected traffic camera income this year.”

Although state and local governments are the ones installing these cameras, it’s oftentimes due to recommendations and research, perhaps even funding from the federal government, as shown in:

b. Federal Involvement

Office of the Majority Leader US House of Representatives “The Red Light Running Crises; Is It Intentional?” May, 2001 http://www.thenewspaper.com/rlc/reports/rlcreport.asp

_{“There’s a hidden tax being levied on motorists today. In theory, this tax is only levied on those who violate the law and put others in danger. But the reality is that the game has been rigged. And we’re all at risk. We are told to accept the idea that our laws should be administered by machines-not human beings-because it is a matter of safety. We must accept this expansion of government and this Orwellian threat to our privacy because cameras are the solution to the so-called red light running crisis.} This is a federal issue, not just a local one. The federal government is promoting and offering funding for _{this “solution”,} [red light cameras] because the safety benefits are supposed to be indisputable.”

c. Potential Gains

The federal government is taking an interest in promoting red light cameras because of the huge potential they have to be lifesavers.  When cameras are properly used, they help to reduce red light violations by up to 96%, and reduce the rate of fatal accidents by up to 24%, according to:

Insurance Institute For Highway Safety, an Independent Non-Profit Research Organization Dedicated To Vehicle and Highway Safety “Q&A Red Light Cameras” June, 2011 http://www.iihs.org/research/qanda/rlr.html

“A 2011 Institute study comparing large cities with red light cameras to those without found the devices reduced the fatal red light running crash rate by 24 percent and the rate of all types of fatal crashes at signalized intersections by 17 percent.⁶ _Previous research has shown that cameras substantially reduce red light violations and crashes. Studies by the Institute and others have found reductions ranging from 40 to 96 percent after the introduction of cameras.”

Now that we understand what red light cameras are, and how they work, the affirmative will present the Goal of Effective Camera Program.  We can either continue with the status quo’s camera program, or vote affirmative and hopefully make it more effective.  The reason we believe a change is needed to make the program more effective is seen through the:

Harm. Gift Without Standards

The current system has the federal government promote the usage of red light cameras, and even hand out funding to local governments for these cameras.  However we are offering these gifts, without offering standards for the usage of the cameras, or a warning as to abuses of them.

Washington Examiner Quoting Representative Peter DeFazio Chairman of the House Subcommittee on Transportation “Congress Questions Red Light Cameras” June, 2010 http://washingtonexaminer.com/local/congress-questions-red-light-cameras#ixzz1Uf7IQMJR

“Committee chairman Rep. Peter DeFazio, D-Ore., criticized the National Highway Traffic Safety Administration for using lax standards in handing out federal grants to help fund red light camera programs. “If people are going to use federal funds to establish these programs, shouldn’t there be standards or guidelines?” DeFazio asked a panel of transportation officials attending the hearing. DeFazio suggested the federal government require proof that states attempted to increase road safety at problem intersections before considering red light cameras.”

When our government ignores standards for the usage of red light camera funds, we accept the abuses that the local governments can heap onto their citizens. This leads to the impacts:

Impact 1. Government Robbery

Local governments have been shortening yellow light times so that drivers will enter the intersection just as the light turns red.  This way they can collect the fines from the citizens and increase their revenue.

Washington Examiner “Congress Questions Red Light Cameras” June, 2010 http://washingtonexaminer.com/local/congress-questions-red-light-cameras#ixzz1Uf7IQMJR

“Federal lawmakers are questioning whether state and local governments are misusing their red light cameras to nab more drivers and boost their revenues. Transportation officials across the country have been illegally shortening yellow lights after ignoring calls to lengthen the warning signals, according to testimony at a hearing held by a subcommittee of the House Transportation Committee on Wednesday.”

Impact 2. Decreased Effectiveness of Cameras

Local governments are decreasing yellow light times so that unsuspecting motorists enter the intersection thinking it’s 4 seconds of yellow time… but it’s actually 3 seconds and they get fined.  Motorists try to fight this by stopping really quickly, and getting rear ended, thus increasing another type of automobile accident, and endangering the safety of US citizens in the interest of generating revenue.

The Atlantic (Newspaper) Jon Henke “Red Light Cameras, Yellow Light Times” April 2008 http://www.theatlantic.com/business/archive/2008/04/red-light-cameras-yellow-light-times/3165/

“Six U.S. cities have been found guilty of shortening the amber cycles below what is allowed by law on intersections equipped with cameras meant to catch red-light runners. The local governments in question have ignored the safety benefit of increasing the yellow light time and decided to install red-light cameras, shorten the yellow light duration, and collect the profits instead. Indeed, the incentives involved for the government are very perverse. If you reduce the yellow light duration, you’ll get a bit more revenue. If you lengthen the yellow light duration, you’ll reduce accidents and save lives. So public officials choose to….reduce yellow light duration? _{[insert comment here about the monopoly power of government]} Shortening the yellow light below the minimum time is clearly wrong – i.e., illegal and unethical.”

As we have seen, the United States Federal Government currently stands in acceptance of citizen robbery and ineffective practices which endanger the lives of civilians.  For this reason we present our:

Plan: Reform Red Light Camera Program

As per the recommendations of Representative DeFazio, chairman of the house transportation committee and the Federal Highway Administration, the following mandates will be enacted:

Mandate 1: Condition Federal Funding (any state or local government receiving federal funding for red light cameras will be required to first examine possible engineering solutions such as longer yellow light times, and must follow the guidelines mentioned in section 8 of the Federal Highway Administration’s “National Agenda For Intersection Safety”)

Mandate 2: Promote Effective Camera Usage (as per the recommendations of the Federal Highway Administration in section 8 of the “National Agenda For Intersection Safety”.  These recommendations include the promotion of proper placement of red light cameras, funding for red light camera programs, promotion of engineering solutions such as longer yellow light times, and effective guidance to the future of red light cameras by focusing on Safety rather than revenue generation.)

Agency and Enforcement are provided by Congress and the President.

Funding: 3 Million dollars will be set aside from General Federal Revenues to enable the carrying out of this plan.

Advantage 1. Justice

a. Government Stealing Lowered

At this moment we are promoting and even funding local governments who are trying to generate revenue at the cost of their citizens safety.  It’s time to take a stand against federal involvement in this practice by creating standards against abuses.

b. Traffic Violations Reduced

When we are able to combine the red light camera program with engineering solutions such as increased yellow light times, we are able to drastically reduce red light violations, and catch the actual criminals who intentionally violate our laws.

Insurance Institute For Highway Safety, an Independent Non-Profit Research Organization Dedicated To Vehicle and Highway Safety “Q&A Red Light Cameras” June, 2011 http://www.iihs.org/research/qanda/rlr.html

“Studies have shown that increasing yellow timing _{to values associated with guidelines published by the Institute of Transportation Engineers} can significantly decrease the frequency of red light violations. _{In addition, a 2002 Institute study found that injury crashes at urban intersections fell 12 percent after the yellow and all-red traffic signal timing was modified according to ITE guidelines.} An Institute study conducted in Philadelphia, Pennsylvania, evaluated effects on red light running of first lengthening yellow signal timing by about a second and then introducing red light cameras.While the longer yellow reduced red light violations by 36 percent, adding camera enforcement further cut red light running by another 96 percent.”

Advantage 2. Safety Promoted It’s time for the United States Federal Government to change our acceptance of red light cameras as revenue generators, and reform this system so that the focus is now on the safety of our citizens, otherwise the program will be doomed to failure.

Representative John Duncan, ranking member of the House Subcommittee on Highways and Transit “DUNCAN STATEMENT ON USE OF RED LIGHT & SPEED CAMERAS” June, 2010 http://transportation.house.gov/News/PRArticle.aspx?NewsID=917

“Some states and localities may be too quick to install photo enforcement techniques without first exhausting other techniques that can reduce red light running and improve safety. Improving sign visibility, installing advance warning flashers and adjusting yellow light intervals can have a positive impact. _{Numerous studies have found that longer yellow signal timing can reduce the frequency of red light running violations} by as much as 50 percent. “While these solutions may not fill government coffers as much as photo enforcement could, we owe it to our taxpayers to _{explore these engineering improvements that} make our roads and highways safer.“

I’d like to close with this quotation from Representative Rick Geist, chairman of the House Transportation Committee, who stressed that the focus of the cameras should be on safety, not revenue. He says:

Pennsylvania Independent Quoting Representative Rick Geist, Chairman of the House Transportation Committee “Transportation Funding Commission Suggests Enabling Legislation for Red Light Cameras” August 2011 http://paindependent.com/2011/08/transportation-funding-commission-suggests-enabling-legislation-for-red-light-cameras/

“The moment that you even allude to the idea that red light cameras are for revenue, you’ve defeated the purpose of the cameras.”

Link to the document mentioned in the Mandates: http://safety.fhwa.dot.gov/intersection/resources/intersafagenda/

The COG 2011 sample brief for the Stoa edition (Progressive Taxes – Good) has been released – you can download it here.

Table of Contents

The initial volume is 49 briefs and 360 pages. Including the free midseason update, the whole sourcebook will be 60+ briefs and 450 pages, all for only $25.

TOPICALITY
Definitions
Topicality Press – Borrowing
Topicality Press – Kritikal Affirmatives
Topicality Press – Purpose Is Revenue
Topicality Press – Revolution
Topicality Press – Spending
Topicality Press – Structure vs. Numbers
Topicality Press – Tax Credits
Supreme Court Fiat – Bad

GENERICS
Corporate Taxes – Good
Corporate Taxes – Bad
Economy – Doing Fine
Economy – Doing Badly
Estate Tax – Good
Estate Tax – Bad
Flat Tax – Good
Flat Tax – Bad
Income Tax – Good
Income Tax – Bad
Predictions Bad
Progressive Taxes – Good
Progressive Taxes – Bad
Regulatory/Excise Taxes – Good
Regulatory/Excise Taxes – Bad
RST/FairTax – Good
RST/FairTax – Bad
Tariffs – Good
Tariffs – Bad
Taxes – Good
Taxes – Bad
VAT – Good
VAT – Bad

KRITIKS
Kritik – Paternalism
Kritik – Tax Relief

DISADVANTAGES
Charitable Donations Disadvantage
Charitable Donations Disadvantage – Response
Congressional Pledge Disadvantage
Constitutionality Disadvantage
Constitutionality Disadvantage – Response
Debt Armageddon Disadvantage
Debt Armageddon Disadvantage – Response
Feed the Black Hole Disadvantage
Feed the Black Hole Disadvantage – Response
Overseas Labor Disadvantage
Overseas Labor Disadvantage – Response
Permanency Disadvantage
Permanency Disadvantage – Response
Spending Disadvantage
Spending Disadvantage – Response

About the Author: Joseph Hughey has been debating in Region Nine for four years, and has been involved in NCFCA ever since he was twelve years old. A very experienced researcher, Joseph is part of the COG 2011-2012 team.

1AC: Abolish the Death Penalty

By Joseph Hughey

It is because the death penalty grossly fails to serves any of its purported goals, and because the alternative of life without parole serves the death penalty’s goals better with less disadvantages that my partner and I stand firmly Resolved: The United States Federal Government should significantly reform its criminal justice system.

For the purpose of clarity, let’s begin with some resolutional analysis.

A. Definitions

Significant is defined as “having or likely to have influence or effect” (from the Merriam-Webster Online Dictionary, 2010)

Reform is defined as “to put or change into an improved form or condition” (from the American Heritage Dictionary, 2010)

Criminal Justice System is defined as “the process by which people who are accused of crimes are judged in court” (from the Cambridge Advanced Learner’s Dictionary, 2011)

B. Weighing mechanisms

We will be running a comparative advantage case, and ask you to judge the round based on a comparative advantage paradigm, meaning that if we can prove that our plan can diminish the status quo harms (still to be presented), our plan should be considered solvent and advantageous and should merit an affirmative ballot.

Next, let’s examine the characteristics of the status quo in…

Observation I: Background

1. The goals of capital punishment are deterrence, retributive justice, and incapacitation

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso

“In its post-Furman jurisprudence, the Supreme Court has acknowledged several state interests that may support capital punishment. These interests include deterrence, retribution, [and] incapacitation, and denunciation and vindication of legal and moral order. Deterrence and retribution are the two most commonly cited reasons for maintaining the death penalty.”

The death penalty fails to serve any of these stated goals, and often works to the opposite effect, as we see in…

Observation II: Justifications

Justification 1: Capital punishment is unjust

A. Innocent people sentenced to death

Prof. Victor Streib (professor of law at Ohio Northern University, attorney specializing in violent crime and the death penalty, frequently cited by the U.S. Supreme Court), “CLASSIC ARGUMENTS FOR AND AGAINST THE DEATH PENALTY,” Elon Law Review (Vol. 1 Issue 1 pp 1-16), 2009 http://www.elon.edu/docs/e-web/law/law_review/Issues/Streib.pdf

“The ultimate end result of discrimination, caprice, and just plain bad luck can be clear error: convicting and sentencing to death an innocent offender. The death penalty system is operated and controlled by human beings who are not immune to human error. [later, in the same context:] Over 120 innocent persons have been sent to death row in the current era (since 1973), and several other states have ordered a moratorium on executions until the causes of these fatal errors are found.”

The death penalty also has a violently negative effect on other innocent victims; the families of death row inmates.

B. The innocent suffer with the guilty

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso

“Many people lose the support of their friends and community when a family member is on death row. One woman whose brother was on death row said, “[a]ll my friends . . . just abandoned me. They didn’t support me at all during the years, and when I came down for [my brother’s] execution, not one of them showed any support. Not one of them called or came over, NOT ONE!” This woman eventually developed high blood pressure, migraine headaches, depression and sleeplessness as a result of her brother’s arrest.”

Not only does the death penalty punish the innocent along with the guilty, but capital defendants are also given grossly incompetent legal representation, severely lessening their chance at a fair trial.

C. Capital defendants are given incompetent representation

Prof. Scott Vollum (Ph.D. in Criminal Justice, Associate Professor of Justice Studies, James Madison University), Prof. Stacy Mallicoat (Ph.D. in Sociology, Assistant Professor in the Political Science and Criminal Justice Division at California State University—Fullerton, CA), and Prof. Jacqueline Buffington-Vollum (Assistant Professor in the Political Science and Criminal Justice Division at James Madison University), “Death Penalty Attitudes in an Increasingly Critical Climate: Value-Expressive Support and Attitude Mutability,” Southwestern Association of Criminal Justice, published in Southwest Journal of Criminal Justice (Vol. 5, Issue 3, pp 221-242), 2009 <accessed July 2, 2011> http://www.utsa.edu/swjcj/archives/5.3/5%20Vollum%20et%20al.,%20Death%20Penalty%20Attitudes.pdf

“Organizations such as the American Bar Association, countless observers and participants in capital trials, capital jurors, and scholarly research studies have all testified to the grossly incompetent legal representation offered to many capital defendants during their trials and sentencing. In addition to the often ill-prepared, ill-equipped, inexperienced, or simply incompetent representation in many capital cases, numerous cases of mentally ill, drunken, and sleeping lawyers have been documented in recent years.”

These three points put together shows how capital punishment cannot serve its goal of justice.

Justification 2: Capital punishment does not deter

A. Non-deterrence

Prof. Scott Vollum (Ph.D. in Criminal Justice, Associate Professor of Justice Studies, James Madison University), Prof. Stacy Mallicoat (Ph.D. in Sociology, Assistant Professor in the Political Science and Criminal Justice Division at California State University—Fullerton, CA), and Prof. Jacqueline Buffington-Vollum (Assistant Professor in the Political Science and Criminal Justice Division at James Madison University), “Death Penalty Attitudes in an Increasingly Critical Climate: Value-Expressive Support and Attitude Mutability,” Southwestern Association of Criminal Justice, published in Southwest Journal of Criminal Justice (Vol. 5, Issue 3, pp 221-242), 2009 <accessed July 2, 2011> http://www.utsa.edu/swjcj/archives/5.3/5%20Vollum%20et%20al.,%20Death%20Penalty%20Attitudes.pdf

“In spite of decades of studies, researchers have failed to find the death penalty to be a general deterrent (i.e., the death penalty has not been found to deter or stop other people from committing murder).”

Not only does capital punishment not deter murder, but it has actually been found to encourage it in what has been labeled the “brutalization effect.”

B. Brutalization

Prof. Victor Streib (professor of law at Ohio Northern University, attorney specializing in violent crime and the death penalty, frequently cited by the U.S. Supreme Court), “CLASSIC ARGUMENTS FOR AND AGAINST THE DEATH PENALTY,” Elon Law Review (Vol. 1 Issue 1 pp 1-16), 2009 http://www.elon.edu/docs/e-web/law/law_review/Issues/Streib.pdf

“Some empirical research on this phenomenon has found that the murder rate goes up, not down, following an execution. This finding, dubbed the “brutalization effect,” is essentially that the death penalty stimulates more murders than otherwise would occur. The common explanation for the unexpected result is that the death penalty “brutalizes” the surrounding community, both diminishing respect for life in general and providing the unfortunate example of our highest leaders in public office intentionally taking a person’s life. In any event, despite the professed claims of American political leaders, these research findings indicate that the death penalty does not actually serve a general deterrent function and apparently has the opposite effect.”

Capital punishment is not a deterrent for murder and instead encourages it through the “brutalization effect.”

Justification 3: Incapacitation is unnecessary

Incapacitating violent offenders to ensure that they do not repeat their crimes is an appealing notion, but the fact is that violent criminals hardly ever repeat their crimes after imprisonment.

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso

“Furthermore, releasing convicted murderers back into the general public does not necessarily pose a threat to society. Recidivism rates among released murderers are extremely low, suggesting that the concern that convicted murderers will kill again may be exaggerated. Moreover, where courts don’t impose the death sentence, they will usually sentence offenders to life imprisonment, which is a sufficient punishment alternative to ensure an offender does not commit further crimes.”

If incapacitation is ever necessary, life imprisonment can serve the purpose just as well as capital punishment, as we’ll see later.

Now, to improve upon this broken system, we provide…

Observation III: The Plan

Enforcement: Congress, the president, and any appropriate, existing government agencies

Mandate:

1. The death penalty will no longer be applied in Federal cases.

2. At the earliest possible opportunity, the U.S. Supreme Court will render the death penalty unconstitutional in all its forms for all purposes.

Funding is not needed as the plan is purely legislative.

All Affirmative speeches have the intent to clarify the plan as needed.

As we have shown, capital punishment has proven to fail at accomplishing any of its stated goals, and in fact has often provided the opposite negative effects. Life imprisonment, on the other hand, can further all of these worthy goals better than the death penalty and with less injustice to society, as we see in…

Observation III: Solvency

1. Life imprisonment serves as an incapacitant

Prof. Victor Streib (professor of law at Ohio Northern University, attorney specializing in violent crime and the death penalty, frequently cited by the U.S. Supreme Court), “CLASSIC ARGUMENTS FOR AND AGAINST THE DEATH PENALTY,” Elon Law Review (Vol. 1 Issue 1 pp 1-16), 2009 http://www.elon.edu/docs/e-web/law/law_review/Issues/Streib.pdf

“Death penalty opponents note that other than the extremely small chance of escape from prison, an imprisoned murderer also is incapacitated, essentially permanently, from committing any murders outside the confines of prison. Therefore, it may be that long term imprisonment is nearly as effective an incapacitant as is the death penalty. In any event, research reveals that murderers are very unlikely to repeat their crimes, so the overall need for an incapacitant is unclear.”

2. Life imprisonment serves all of capital punishment’s goals with less injustice to families

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso

“Because of the fundamental nature of this right, the government may not infringe upon it “unless the infringement is narrowly-tailored to serve a compelling state interest.” The death penalty is not narrowly-tailored because it fails to serve the compelling penological interests for which it purportedly exists—to deter crime, to incapacitate offenders, to restore moral order, and to serve as a form of retribution. Lengthy incarceration, including life in prison without parole, more effectively accomplishes these penological goals with less damage to the family relationship.”

Life imprisonment serves the goals of justice, deterrence, and incapacitation better than capital punishment and with much less collateral damage. It makes sense to abolish the death penalty because it does more harm than good, and to reinstate it with a system we know to work.

We’d like to close with the words of Professor John Lamperti, a professor of mathematics at Dartmouth College. In 2010, he said…

“If executions protected innocent lives through deterrence, that would weigh in the balance against capital punishment’s heavy social costs. But despite years of trying, this benefit has not been proven to exist; the only certain effects of capital punishment are its liabilities. The death penalty in New Hampshire serves no social purpose, and its abolition would be a practical and a moral step forward.”

(Prof. John Lamperti (Professor of Mathematics, Dartmouth College), “Does Capital Punishment Deter Murder? A brief look at the evidence,” Dartmouth College, March, 2010 <accessed July 2, 2011> http://www.math.dartmouth.edu/~lamperti/my%20DP%20paper,%20current%20edit.htm)

The system will not fix itself. The only way to fix it is by affirming the resolution with an affirmative ballot.

Backup: Abolish the Death Penalty

Justification 1A) Innocents sentenced to death

Fallible jurors are biased to convict

Prof. Arnold H. Loewy (George R. Killam professor of law, Texas Tech School of Law), “THE DEATH PENALTY IN A WORLD WHERE THE INNOCENT ARE SOMETIMES CONVICTED,” published in Texas Tech Law Review (Vol. 41, No. 1, pp 187-198), Fall 2008 <accessed July 6, 2011> (JH)

“To illustrate, if a jury is 70% convinced of a defendant’s guilt and does not wish to turn him loose, it might well convict him of murder. Assuming the jury assessed all factors properly, it would be right seven out of ten times. Of course, it would be wrong the other three out of ten times. Those three, multiplied many times over, make up the cadre of innocent people who have been convicted. Of course, the jury believed that each was guilty, and most of the time it was correct. But, as any sports gambler knows, seven to three (and even greater) underdogs sometimes prevail.”

Innocent people are sentenced to death regularly

Prof. Lawrence C. Marshall (professor of law, Northwestern University School of Law, Legal Director for the Center on Wrongful Convictions), in a Walter C. Reckless Memorial Lecture entitled “The Innocence Revolution and the Death Penalty,” published in the Ohio State Journal of Criminal Law (Vol. 1, pp 573-584), January 1, 2004 <accessed July 5, 2011> http://moritzlaw.osu.edu/osjcl/Articles/Volume1_2/WalterCReckless/Marshall_1_2.pdf (JH)

“The question, then, is no longer whether innocent people are convicted or whether innocent people are sentenced to death. We now know that this happens with a regularity that none of us ever imagined before. This is a very new revelation. Only ten years ago some very reasonable people believed that the frequency of wrongful convictions was so low that the issue was not worth a place in the public policy debate. Only ten years ago, some very reasonable people believed that our system was so committed to accuracy, so replete with procedural protection, that it was virtually unthinkable that innocent defendants would be convicted in any criminal case, much less a capital case. Today, we understand that this confidence was misplaced.”

Justification 1B) Death row families

Family members are persecuted by the community

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso (JH)

“The harm caused by the death penalty is not limited to the judicial process. The stigma and shame associated with a capital punishment case results in ill treatment by the community at large. One woman said that human feces was left at her doorstep, and another’s family pets were killed. Some people experienced harassment at work and others at church. An African American participant in Professor Elizabeth Beck’s study of family members of capital defendants stated that “she only felt safe on her side of the tracks” where she lived with other low-income African Americans. The participant acknowledged that she felt fear when she “had to cross the tracks” particularly to attend her son’s trial.105 She stated, “I was scared too about being his mother. Like doomed. You feel like somebody is going to do something to you[.]””

Family members can experience severe physical symptoms

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso (JH)

“Family members also experienced physical symptoms such as, “the inability to control diabetes and high blood pressure, worsened emphysema, diverticulitis, massive heart attacks, and a rapidly spreading cancer.”¹⁸⁸ Darlene Chambers, who witnessed her husband’s execution, “beat the glass and screamed in pain,” then collapsed and required hospitalization for shock and exhaustion.¹⁸⁹”

Family members suffer severe physical and psychological harm from executions

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso (JH)

“The aftermath of executions often seriously compromises the stability of the entire family. In one family, the mother of the executed man died of heart failure within a year of his execution. The sister developed high blood pressure, migraine headaches and depression. Another sibling drank alcohol all day long. A niece is unemployed because “[a]ll she wants to do is sleep.” Other family members experienced “suicidal thoughts, functional impairment, chronic sadness, inability to feel pleasure, irritability, and physical symptoms.” For some, the functional disability was complete. One mother “did not open her mail or pay a bill for years. She stated, ‘I lost everything . . . . I became a burden on my family.’””

Justification 1C) Incompetent representation

Death penalty is “reserved for those who have the worst lawyer”

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso (JH)

“Under Supreme Court jurisprudence, the death penalty is to be reserved for the worst of the worst offenders; the reality is that the death penalty is reserved for those who have the worst lawyer and who are least able to defend themselves. The common saying, “capital punishment means them [sic] without the capital get the punishment,” is unfortunately true.”

Defendants frequently given terrible legal representation

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso (JH)

“Many death row families were seriously disillusioned with the justice system because of the incompetence of their loved ones’ attorneys. Tragically, many families also used life savings to hire incompetent attorneys, only to learn later that their family member would have fared better with a public defender. Some of their family members were represented by attorneys with drinking problems; some of the attorneys had had problems with ethical violations; some were disbarred after representing their family member, and many had no experience whatsoever in trying capital cases.”

Justification 2A) Non-deterrence

More than thirteen studies say that the death penalty is not a deterrent for murder

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso (JH)

“Many scholars are emphatic in their assertion that the death penalty is not a deterrent and, if anything, may actually increase homicides. Scholars Charles Lanier and James Acker claim that the overwhelming body of research shows “no credible evidence that capital punishment is a superior deterrent to murder than is life imprisonment.”³³⁶ They cite thirteen studies to support this assertion, as well as a study by scholars Ruth Peterson and William Bailey, who reviewed the mass of studies on the death penalty and deterrence.³³⁷ Any studies purporting to show a deterrent effect have been thoroughly discredited in the research community for their “faulty methodologies and failure to stand up under attempted replication.”338 Renowned scholar David Baldus stated, “Although research does not prove conclusively that the death penalty does not deter crime, it provides very strong support for the proposition that if there is any marginal deterrent effect from the death penalty, it is beyond our capacity to measure and document.”339”

Murderers don’t usually consider the costs of their actions

Prof. Tomislav V. Kovandzic (Professor and faculty member in the School of Economic, Political and Policy Sciences University of Texas at Dallas), Prof. Lynne M. Vieraitis (Ph.D. in Criminology, Professor and faculty member in the School of Economic, Political and Policy Sciences University of Texas at Dallas), and Prof. Denise Paquette Boots (Ph.D. in Criminology, Associate Professor of Criminology, University of Texas at Dallas, former juvenile residential counselor for adjudicated youth, and Pre-Doctoral Fellow with the National Consortium on Violence Research), “Does the death penalty save lives? New evidence from state panel data, 1977 to 2006,” American Society of Criminology, published in Criminology and Public Policy (Vol. 8, Issue 4, pp 803-843), November 18, 2009 <accessed July 2, 2011> (JH)

“Nagin and Pogarsky (2004) found that property and violent crime may be associated with different approaches to the consideration of future consequences. Property offenders tended to discount or deliberately devalue future consequences, whereas violent offenders tended not to consider future consequences at all. This finding is not surprising in light of the fact that violent offenders, including homicide offenders, are more likely in a state of emotional duress at the time of the crime and are unlikely to be thinking of the costs of their actions. Moreover, many homicide offenses are committed during the commission of another felony (e.g., robbery). If committing a less serious felony is the goal of the offender, then it is unlikely they are simultaneously weighing the possibility of a death sentence for a murder they were not originally planning to commit.”

Studies claiming deterrence are fraught with errors

Prof. Jeffrey Fagan (professor of law and Public Health at Columbia University, Fellow of the American Society of Criminology, and a member of the Committee on Law and Justice of the National Research Council), in a Testimony to the New York State Assembly Standing Committee on Codes, Assembly Standing Committee on Judiciary and Assembly Standing Committee on Correction entitled “DETERRENCE AND THE DEATH PENALTY: A CRITICAL REVIEW OF NEW EVIDENCE,” Columbia Law School, January 21, 2005 <accessed July 2, 2011> http://www.itc.rochester.edu/college/psc/clarke/204/FaganTestimony.pdf (JH)

“Recent studies claiming that executions reduce murders have fueled the revival of deterrence as a rationale to expand the use of capital punishment. Such strong claims are not unusual in either the social or natural sciences, but like nearly all claims of strong causal effects from any social or legal intervention, the claims of a “new deterrence” fall apart under close scrutiny. These new studies are fraught with technical and conceptual errors: inappropriate methods of statistical analysis, failures to consider all the relevant factors that drive murder rates, missing data on key variables in key states, the tyranny of a few outlier states and years, and the absence of any direct test of deterrence. These studies fail to reach the demanding standards of social science to make such strong claims, standards such as replication and basic comparisons with other scenarios. Some simple examples and contrasts, including a careful analysis of the experience in New York State compared to others, lead to a rejection of the idea that either death sentences or executions deter murder.”

Justification 2B) Brutalization

People use the death penalty as suicide, driving up the murder rate

Prof. John Lamperti (Professor of Mathematics, Dartmouth College), “Does Capital Punishment Deter Murder?A brief look at the evidence,” Dartmouth College, March, 2010 <accessed July 2, 2011> http://www.math.dartmouth.edu/~lamperti/my%20DP%20paper,%20current%20edit.htm(JH)

“If capital punishment really has any effect on homicide rates, that effect must be small. Worse, it might go the wrong way! There are cases where the death penalty has been a cause of homicide rather than a preventive. How could capital punishment be a cause of murder? In a medical paper, Dr. Louis West has described what he calls “attempting suicide by homicide.” In these bizarre cases a person actually kills in order to court death by execution. Here is one of them: Recently an Oklahoma truck driver had parked to have lunch in a Texas roadside cafe. A total stranger–a farmer from nearby–walked through the door and blew him in half with a shotgun. When the police finally disarmed the man and asked why he had done it, he replied, “I was just tired of living.”

Countries without the DP have significantly lower murder rates than the United States

Prof. Arnold H. Loewy (George R. Killam professor of law, Texas Tech School of Law), “THE DEATH PENALTY IN A WORLD WHERE THE INNOCENT ARE SOMETIMES CONVICTED,” published in Texas Tech Law Review (Vol. 41, No. 1, pp 187-198), Fall 2008 <accessed July 6, 2011> (JH)

“My reasons for doubting the veracity of the super-deterrent death penalty statistics are twofold. First, they do not appear to comport with reality. Countries other than the United States that do not have capital punishment, such as Australia, Canada, England, and Germany, have significantly lower murder rates than the United States. 33 Furthermore, those states in the United States that do not have capital punishment have, on average, lower murder rates than states that do.34 Finally, comparing neighboring states with similar demographics, but for the presence or absence of capital punishment, shows virtually no differences. 35 For example, comparing Kentucky, New Hampshire, and South Dakota (states with capital punishment) to West Virginia, Vermont, and North Dakota (states without capital punishment), respectively, reveals virtually no distinctions in murder rates.36”

Solvency: Life without parole is better

Life sentences accomplish retribution, deterrence, and incapacitation goals better than the DP

Rachel C. King (J.D. Northeastern University School of Law, counsel for the Subcommittee on Crime, Terrorism and Homeland Security for the Committee on the Judiciary of the House of Representatives), “No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners,” published by Berkeley Electronic Press’ Legal Series (Paper No. 1584), August 19, 2006 <accessed July 5, 2011> http://law.bepress.com/cgi/viewcontent.cgi?article=7295&context=expresso (JH)

“In conclusion, the death penalty fails to accomplish any of its stated criminal justice goals [those being retribution, deterrence, and incapacitation]. To the extent that the death penalty does accomplish any of these “compelling state interests,” a life sentence would accomplish them as well as or better than a death sentence. “Strict scrutiny requires that state action limiting the exercise of a fundamental right serve a compelling governmental interest and be the least restrictive means to serve that end.”467 Because life in prison is a less restrictive alternative than the death penalty, states that choose to practice the death penalty have not “narrowly tailored” its infringement on the “fundamental liberty interests” of family members of capital defendants.468”

Advocacy

Prof. Arnold H. Loewy: A balancing of the arguments

Prof. Arnold H. Loewy (George R. Killam professor of law, Texas Tech School of Law), “THE DEATH PENALTY IN A WORLD WHERE THE INNOCENT ARE SOMETIMES CONVICTED,” published in Texas Tech Law Review (Vol. 41, No. 1, pp 187-198), Fall 2008 <accessed July 6, 2011> (JH)

“How does the balance for and against capital punishment come out when speaking only of the guilty? Obviously, the answer depends on the weight one accords to each factor. My balance comes out against capital punishment. As I see it, capital punishment, as opposed to a super-max prison, is rarely necessary for restraint. The problem is that we are not good at knowing who needs to be restrained. Similarly, the type of retribution that the law currently allows is so hit or miss that it is almost counterproductive. Finally, the marginal deterrent value of the death penalty, at least as I see it, is so slight (if not negative) that using it to justify the death penalty is difficult.…Given that balance, I am forced to conclude that capital punishment is excessive, even as applied to the guilty.”

Prof. Arnold H. Loewy: The possibility of innocent people being sentenced to death is reason enough for the abolition of the death penalty

Prof. Arnold H. Loewy (George R. Killam professor of law, Texas Tech School of Law), “THE DEATH PENALTY IN A WORLD WHERE THE INNOCENT ARE SOMETIMES CONVICTED,” published in Texas Tech Law Review (Vol. 41, No. 1, pp 187-198), Fall 2008 <accessed July 6, 2011> (JH)

“In light of my conclusion that capital punishment is excessive when speaking of the guilty, the relevance of probably executing some innocent people in the future takes a sharper focus. While the question may be a close one if we knew we always convict (and sentence to death) only guilty people, we in fact know that is not the case. Because we know that the innocent are sometimes convicted, and because capital punishment, even limited to the guilty, is probably not justified, the answer is clear. At least until we know we do not convict innocent people, the death penalty should be abolished.”

About the Author: Amber Sivils has debated in both TP and LD debate. Among her stellar debate records are her 2009-2010 finishes: 2nd at the Texas National Open, and 19th at the National Championship at Regents University. Amber and her partner, Kevin Behne, were famous for running the infamous duplex printing case in environmental policy year.

Strategy Notes

The strategy for this case is pretty simple – nobody likes taxes. The estate tax (also called the “death tax”) is especially bad, because it taxes the capital of a deceased person. Taxing capital is always bad for the economy, because it hurts private investment while gaining minimal benefit for the public sector. The estate tax was originally put in place to prevent a family dynasty (a family that gets rich, and stays rich for years because of the original rich person in the family) from arising. The problem is, that doesn’t actually stop because of the estate tax. What does happen is a poor family business can’t afford a 55% tax, and has to sell their business to have the money for that tax. In 2010, a two year relief period was set in place. So, at the end of 2012, the death tax rises from the grave to haunt everyone again. There’s tons of evidence that we should definitely repeal the death tax before that happens.

Strongest arguments for this case are definitely that the estate tax benefits nobody, and that the best solution is to make the relief period permanent. Statistically, the relief period’s shown that the death tax was just a bad tax.

Arguments to be prepared for: that very few people are taxed, that the estate tax is needed for government survival, and that the estate tax plays a key role in our economy (preventing dynastic wealth). As far as few people being taxed right now, that’s correct. However, that’s only true because we’re in a relief period at the moment. When the relief period ends, so does that number’s ability to stay small. The death tax generates about 1% of government’s wealth; they can survive just fine without 1%. And, the dynastic wealth argument is covered in disadvantage response five.

Best of luck, and have fun with this!

1AC: Repeal the Estate Tax

By Amber Sivils

Two things in life are certain: death and taxes. And, one thing is certain in death: a lot of taxes. For the past 95 years, the United States Federal Government has made dying an expensive task. If a person leaves behind any of their estate, the heirs of their estate can be taxed up to 55% by the federal government. Because dying shouldn’t be a financial struggle, my partner and I stand resolved: That the United States federal government should substantially reform its revenue generation policies.

Let’s look at a few key…

Definitions

…to guide our debate.

United States Federal Government: The government of the United States; the government of a community of independent and sovereign states, united by compact. (Ballentine’s Law Dictionary, Third Edition, © 1969)

Reform: To Change for the better. (The American Heritage® Dictionary of the English Language, Fourth Edition Copyright © 2009)

Revenue Generation Policy: Revenue generation depends primarily on three elements: tax policy, the revenue administration system and overall economic activity. (Center On International Cooperation 2007. Political Economy Research Institute “Options for Revenue Generation In Post-Conflict Environments” Article Written by: Michael Carnahan)

Estate Tax (also referred to as the “death tax”): A tax levied on the net value of the estate of a deceased person before distribution to the heirs. (Merriam Webster Online Dictionary 2011 Edition © 2011 Merriam-Webster, Incorporated)

Now that we have our definitions laid out, let’s take a look at what our current revenue generation policy is. We’ll do that through the core issue we refer to as:

Inherency

Inherency one: Federal estate tax in place since 1916

William Ahern September 19, 2010 ["The Estate Tax Is Foolish, Wasteful, Ineffective" (William Ahern is director of policy and communications at the Tax Foundation, a nonprofit think tank in Washington, D.C.)]
http://www.taxfoundation.org/news/show/26725.html

“Alas, this foolish tax is soon to be reinstated, possibly even retroactively. The tombstone should read “Federal Estate Tax, 1916-2009, RIP” but instead it will almost certainly rise from the dead and haunt our economy for many years to come.”

For the past 95 years, the federal government has maintained a high estate tax. However, in 2010, the federal government placed a two year waiver on the death tax. Unfortunately, as we see in Inherency point two:

Inherency two: Federal estate tax cuts expire in 2012

Shannon Bream, a journalist for Fox News on June 30, 2011 ["Fox's 'Straight News' Campaigns For Estate Tax Repeal' Bream was formerly an anchor for WBTV, WRC-TV, and WFTS-TV. Prior to being a news anchor, she practiced corporate law in Tampa, Florida.]
http://mediamatters.org/research/201106300001

“Estate tax opponents got their wish this year, when the tax was temporarily repealed. But the tax holiday will be short-lived because, under current law, the estate tax is scheduled to return next year with a top rate of 55 percent for estates larger than $1 million for individuals and $2 million for married couples.”

After 2011, the federal estate tax will return to a 55% rate. Let’s look at a few reasons why a 55% tax is detrimental in what we like to call:

Harms

Harm one: The death tax is an outdated and harmful tax

Patrick F. Fagan, PhD, July 26, 2010 [“How the Death Tax Kills Small Businesses, Communities—and Civil Society” Published by the Heritage Foundation (Fagan is a Senior Fellow at The Family Research Council in Washington, D.C.)]
http://www.heritage.org/research/reports/2010/07/how-the-death-tax-kills-small-businesses-communities-and-civil-society

“The death tax generates about 1 percent of federal revenues. By generating that small a benefit to the fed­eral treasury, the death tax discourages investment and savings, undermines job creation, suppresses productivity and wage growth, hurts those whose sav­ings are tied up in land, hurts businesses owned by families, women, and minorities, and contradicts the American ideal of wealth creation.”

Aside from being useless and antiquated, the federal estate tax is also counterproductive at generating government revenue, as seen in:

Harm two: Increases in federal estate tax costly for state and local governments

Wall Street Journal July 2, 2011 [Written by Bill Batchelder (Speaker of the Ohio House of Representatives), Jack Boyle (co-founder of Citizens United to End Ohio's Estate Tax), and Dick Patten (President of the American Family Business Foundation and the American Family Business Institute, also writes for the Christian Science Monitor, Washington Times, and many more)]
http://online.wsj.com/article/SB10001424052702304447804576414013906238754.html

“A 2009 Duquesne University study found that state and local governments lost some $3 in non-estate tax revenues for every $1 increase in federal estate tax revenue.”

In addition to being a counterproductive tax for the government, the federal estate tax causes numerous problems for the private sector.

Harm three: Federal estate tax is destructive for private businesses

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“2010 is the only year since 1916 in which heirs to an estate will not have to pay the dreaded death tax. Victory for small businesses? Not yet—due to a legal quirk, the death tax is scheduled to come back to life in 2011. Studies, statistics, and real life have shown again and again that the businesses and families burdened with the death tax often see themselves forced to cut back on benefits, investments, and employees. The death tax keeps new jobs from being created, hurting not just the affected businesses, but the economy as a whole. Because it is a tax on capital, the death tax destroys as many as 1.5 million jobs that the economy needs as it struggles to recover”

Mandate one: The United States Federal Government will permanently repeal the federal estate tax.

Agencies and enforcement: The United States federal government, and the IRS (Internal Revenue Service)

Funding: No funding is necessary, as the affirmative plan is purely legislative.

With the affirmative plan presented, let’s look at how the plan effectively solves the problems presented earlier.

Solvency

Solvency one: Federal death tax should be repealed

William W. Beach November 29, 2009 [“Seven Reasons Why Congress Should Repeal, Not Fix, The Death Tax” Published by the Heritage Foundation. William W. Beach is the director of the Center for Data Analysis at the Heritage Foundation.] Brackets added for clarification. http://www.heritage.org/research/reports/2009/11/seven-reasons-why-congress-should-repeal-not-fix-the-death-tax

“What should Congress do? Some Members [of congress] want to permanently “fix” the death tax by reducing the top rate to 35 percent, which some pro-death tax policymakers suggest is a rate wealthy taxpayers could “afford.” However, this would be the wrong move for Congress to make. Instead, policymakers should do what their voters want them to do, as revealed in poll after poll: They should repeal this tax and kill it, once and forever.”

The federal death tax coming to a timely end would result in several significant advantages, as seen in:

Advantages

Advantage one: Economic benefit

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“A large increase in employment is not the only benefit the economy would enjoy if Congress repealed the death tax. Additional benefits from full repeal of the estate tax include:

• Increasing small business capital by more than $1.6 trillion;
• Increasing the probability of hiring by 8.6 percent;
• Increasing payrolls by 2.6 percent; and
• Expanding investment by 3 percent.”

In addition to the economic benefit, removing the death tax would create 1.5 million jobs.

Advantage two: 1.5 million jobs created

Douglas Holtz-Eakin and Cameron T. Smith, February 2009 [(Dr. Douglas Holtz-Eakin and Cameron T. Smith February 2009 [Dr. Douglas Holtz Eakin is an Americaneconomist, former professor at Syracuse University, former Director of the Congressional Budget Office, and former chief economic policy advisor to US Senator John McCain's 2008 presidential campaign. Cameron T. Smith was a policy intern at Lehman Brothers, is a special assistant to the President and Director of Energy policy at the American Action forum , and is a consultant at DHE consulting, LLC.) Published by the American Family Business Foundation “Changing views of the estate tax: Implications for legislative options”]
http://www.pacificresearch.org/docLib/20090706_DHE_AFBF_Estate_Tax.pdf

Repealing the death tax would:

•  “Increase small business capital by over $1.6 trillion
• Increase the probability of hiring by 8.6%
• Increase payrolls by 2.6%
• Expand investment by 3%
• Create 1.5 million additional small business jobs
• Slash the current jobless rate by .9%”

In conclusion:

Repealing the death tax would not only benefit small businesses, but would also be extremely beneficial for the American economy as a whole. While death and taxes are certain in life, taxes don’t have to be certain in death. In order to put this deadly tax to rest, I urge an affirmative ballot. Thank you for your time, and I now stand open for cross examination and points of clarification

Backup: Repeal the Estate Tax

OPENING QUOTES

95 years of death taxes

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“2010 is the only year since 1916 in which heirs to an estate will not have to pay the dreaded death tax.”

INHERENCY

2010/2011 “exemption” only applicable to richest 35%

Rafael Ruano, an estate planning attorney and writer for AG Web writer, July 5, 2011 “Estate Tax Lingo” [Rafael Ruano is an estate planning attorney with Goyette & Associates in Gold River, California.]
http://www.agweb.com/article/report_2011_estate_tax_lingo/

“For 2011 and 2012, the federal estate tax exemption is $5 million, and the estate tax rate for estates valued at more than this amount is 35%. This means that an individual can transfer up to $5 million without incurring any federal estate taxes. A married couple can thus pass $10 million without incurring estate taxes (see “Portability”). Like the estate tax exemption, the gift tax exemption and generation skipping transfer tax exemption are $5 million each, and the tax rate for both of these taxes is also 35% (see “Generation-Skipping Tax” and “Gift Tax”).”

Exemptions expire after 2012

Rafael Ruano, an estate planning attorney and writer for AG Web writer, July 5, 2011 “Estate Tax Lingo” [Rafael Ruano is an estate planning attorney with Goyette & Associates in Gold River, California.]
http://www.agweb.com/article/report_2011_estate_tax_lingo/

“In 2013, the law reverts back to what it was in 2001—unless Congress acts and either extends the new set of laws or changes them yet again (see page 34 for details).”

Estate tax will return to top 55%

Shannon Bream, a journalist for Fox News on June 30, 2011 ["Fox's 'Straight News' Campaigns For Estate Tax Repeal' Bream was formerly an anchor for WBTV, WRC-TV, and WFTS-TV. Prior to being a news anchor, she practiced corporate law in Tampa, Florida.]
http://mediamatters.org/research/201106300001

“Estate tax opponents got their wish this year, when the tax was temporarily repealed. But the tax holiday will be short-lived because, under current law, the estate tax is scheduled to return next year with a top rate of 55 percent for estates larger than $1 million for individuals and $2 million for married couples.”

Information – Previous years’ death taxes

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“The number of estates subject to the death tax has declined steadily since passage of the 2001 tax relief. That package steadily phased out the death tax by reducing its rate and increasing the portion of estates exempt from the death tax from $1 million to $3.5 million, before doing away with the death tax entirely in 2010. In 2000, before the tax relief packages began, 52,000 estates paid the death tax. As a result of the increased exemption level, by 2008 (the latest year of available data) just over 17,000 estates paid the death tax.”

At the end of 2012, tax rate returns to 55%

Tax Policy Center June 2, 2011 [“The Numbers” Tax Policy Center is a joint venture of the Urban Institute and Brookings Institution, and is made up of nationally recognized experts in tax, budget, and social policy.]
http://www.taxpolicycenter.org/taxtopics/estatetax.cfm

“Current law returns the exemption to $1 million and the top rate to 55 percent in 2013.”

HARMS

Unfair game – rich die rich, poor die poorer

Wall Street Journal July 2, 2011 [Written by Bill Batchelder (Speaker of the Ohio House of Representatives), Jack Boyle (co-founder of Citizens United to End Ohio's Estate Tax), and Dick Patten (President of the American Family Business Foundation and the American Family Business Institute, also writes for the Christian Science Monitor, Washington Times, and many more)]
http://online.wsj.com/article/SB10001424052702304447804576414013906238754.html

“The owners of family businesses and family farms typically can’t afford such games. For all practical purposes, they’re cash-poor, with most of their capital—and net worth—tied up in land, buildings, equipment, inventory and payroll.”

Forced liquidation of family businesses

Shannon Bream, a journalist for Fox News on June 30, 2011 ["Fox's 'Straight News' Campaigns For Estate Tax Repeal' Bream was formerly an anchor for WBTV, WRC-TV, and WFTS-TV. Prior to being a news anchor, she practiced corporate law in Tampa, Florida.]
http://mediamatters.org/research/201106300001

“The federal estate tax can be especially tricky for many small, family-held businesses. That’s because, when an individual dies, what he or she leaves behind can be subject to significant taxation, even if it’s primarily invested in a family business. If the entity doesn’t have enough cash on hand to meet the obligation, heirs are often forced to sell the business in order to raise enough money to satisfy the tax bill.”

Expiration of relief period is an impending economic Armageddon

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“The phase-out of the death tax was long overdue and represents Congress’s recognition of the economic damage the death tax causes. But the expiration of the death tax is only temporary. On January 1, 2011, it will come back to life with its rate as high and exemption amount as low as before the 2001 tax relief. Congress passed the 2001 tax bill under budget reconciliation rules. Policies passed under reconciliation cannot extend outside a 10-year budget window, so the current law has always included the resurrection of the death tax in 2011 despite the congressional vote for its permanent extinction.”

Death tax chokes economic growth

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“The death tax slows economic growth, destroys jobs, and suppresses wages because it is a tax on capital and on entrepreneurship. Capital is any resource that individuals or businesses use to generate income. Like anything else, when the income accruing to capital is taxed, its price rises and less of it is purchased. Less capital means slower productivity growth, lower wages, and fewer jobs. As such, taxes on capital should be minimal or nonexistent.”

Undermines job creation

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“Because the death tax discourages saving and investing, it also undermines job creation. Resources that otherwise would have been available for businesses to use to expand their operations and add new workers are consumed by people who deem it wiser to spend the money now than invest it knowing their inheritors will have to pay the death tax later. Furthermore, resources that businesses otherwise would have used to add jobs are diverted to protect families from the death tax.”

Economic butterfly effect

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“Since the death tax lowers saving and investing, there are fewer resources available for businesses to purchase additional tools and equipment or replace old and worn-out pieces with new ones. That means less capital their workers can use, and therefore the workers’ productivity does not increase as much as it would have in the absence of the death tax. If the business cannot replace worn-out capital, the productivity of its workers declines. Wages are a function of a worker’s productivity, growing more slowly when productivity slows, and declining when productivity decreases.”

Targets small family businesses

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“Estates that consist largely of family-owned businesses are the most vulnerable to the death tax. Family-owned businesses and the families that own and operate them are synonymous for purposes of the death tax. The value of the portion of a business owned by a deceased person, including the business’s assets, such as equipment and property, is included in their estate. The high value of these assets is the cause of the problem for family-owned businesses.”

Small businesses forced to liquidate

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“If a business’s available cash does not cover the full estate tax bill, the family must sell some of its assets—despite their necessity for the operation of the business. The forgone assets the business sells to pay the death tax lowers its income-generating capability, forcing it to reduce wages or let go of some existing workers because of reduced capacity. Even if the business can pay the death tax liability without reducing its workforce or lowering wages, it can no longer use the resources diverted to paying the tax bill to expanding the business, adding workers, or raising wages.”

Large companies avoiding tax causes economic damage

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“Even though they face large death tax bills, estates from wealthy families pay considerably lower taxes than they otherwise would—because of estate tax lawyers and planners. Wealthy families hire expensive estate lawyers to arrange their affairs in a legal manner to minimize the impact of the death tax on their estates, or in some cases escape liability all together. Estate tax lawyers and planners have an obvious vested interest in seeing the death tax remain in place. As long as it does, they can continue to collect lucrative fees for arranging estates to minimize death tax liability. The fees paid by families to minimize their death tax liability are a drag on economic growth. The families could invest the resources they use to protect their estates so businesses and entrepreneurs could create new jobs; instead the money is diverted to protect the estate from the death tax.”

Outdated tax

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“Outside the narrow special interests that benefit from the death tax, there no longer exists any justification for the tax. When Congress passed the death tax in 1916, it was originally intended to serve two purposes: raise revenue for the federal government (World War I was the original impetus for extra revenue); and prevent the build-up of wealth in a concentrated number of families. The death tax serves neither of these purposes today.”

Anyone taxed for passing estate is too many taxed

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“A common argument in favor of the death tax is that it only affects a small number of estates and as such has a small impact on the economy. By that logic, a tax that only one taxpayer paid would be an ideal tax, even if that tax ground the economy to a halt. The number of taxpayers that pay a particular tax is economically irrelevant. What matters is the impact the tax has on the economy. By this more accurate metric the death tax is a poor tax because it is a large weight dragging down economic growth.”

Estate tax still damaging economy, despite reductions in estates being taxed

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“Fewer estates paying the death tax has reduced the economic cost it imposes, but as long as the death tax remains in place it will continue to slow economic growth, destroy jobs, and lower wages. It is little consolation to workers that remain unemployed or see their pay stagnate because of the death tax that the impact of the tax has been slightly lessened.”

Disproportionate tax – rich get exemptions and poor have to pay

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“According to data from the Internal Revenue Service “smaller estates (under $3.5 million) make up the bulk of filers—more than 60 percent between 2002 and 2007. Large estates (over $10 million), however, contributed between 18 percent and 30 percent of the total revenue in the same time frame, indicating a disproportionate distribution of tax liability.”[10] Subjecting these estates to the death tax again would continue to put a large number of workers at risk of seeing their wages idle or their jobs destroyed.”

SOLVENCY

Historical precedence – Ohio alleviated tax burdens

Wall Street Journal July 2, 2011 [Written by Bill Batchelder (Speaker of the Ohio House of Representatives), Jack Boyle (co-founder of Citizens United to End Ohio's Estate Tax), and Dick Patten (President of the American Family Business Foundation and the American Family Business Institute, also writes for the Christian Science Monitor, Washington Times, and many more)]
http://online.wsj.com/article/SB10001424052702304447804576414013906238754.html

“The end of the death tax, which goes into effect on Jan. 1, 2013, will help stop the hemorrhaging of small businesses and jobs from the Buckeye State. Ohioans had suffered long enough with the levy on inheritances, with a 6% tax on personal and business assets above the $338,333 exemption, up to $500,000, and a 7% tax on assets above $500,000. The death tax was a major reason that business, jobs and capital have fled the state.”

Death tax should be repealed before relief expires

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“The renewed death tax would once again inflict serious harm on family businesses, workers, and the economy. Congress should act before the end of the year to repeal this economically harmful tax permanently.”

Time for the death tax to die

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“It is long past time for Congress to repeal the death tax for good. It serves none of the original purposes Congress intended in 1916, and it presents a significant danger for family-owned businesses. Because it is a tax on capital, it is destroying some 1.5 million jobs that the economy desperately needs as it struggles to recover.”

ADVANTAGES

Eliminating the federal estate tax = $9.3 billion for states

Wall Street Journal July 2, 2011 [Written by Bill Batchelder (Speaker of the Ohio House of Representatives), Jack Boyle (co-founder of Citizens United to End Ohio's Estate Tax), and Dick Patten (President of the American Family Business Foundation and the American Family Business Institute, also writes for the Christian Science Monitor, Washington Times, and many more)] [*Study done by Antony Davies (an associate professor of economics at Duquesne University) and Pavel Yakovlev (an assistant professor of economics at Duquesne University)]
http://online.wsj.com/article/SB10001424052702304447804576414013906238754.html

“Overall, the study* calculated, eliminating the federal estate tax would boost state and local tax revenues by approximately $9.3 billion annually.”

Create 1.5 million jobs

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“The most recent study on the effect on employment from repeal of the death tax by Douglas Holtz–Eakin and Cameron Smith, completed in 2009, found that even with a reduced number of estates paying the death tax in recent years, the death tax continues to destroy an unacceptable amount of jobs. The study found that full repeal of the death tax would create 1.5 million jobs”

Comprehensive economic benefit

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“A large increase in employment is not the only benefit the economy would enjoy if Congress repealed the death tax. Additional benefits from full repeal of the estate tax include:

• Increasing small business capital by more than $1.6 trillion;
• Increasing the probability of hiring by 8.6 percent;
• Increasing payrolls by 2.6 percent; and
• Expanding investment by 3 percent.”

DISADVANTAGE RESPONSES

Historical Precedence – Ohio killed off an $8 billion debt without estate tax

Wall Street Journal July 2, 2011 [Written by Bill Batchelder (Speaker of the Ohio House of Representatives), Jack Boyle (co-founder of Citizens United to End Ohio's Estate Tax), and Dick Patten (President of the American Family Business Foundation and the American Family Business Institute, also writes for the Christian Science Monitor, Washington Times, and many more)]
http://online.wsj.com/article/SB10001424052702304447804576414013906238754.html

“Ohio Gov. John Kasich made good on a major campaign promise Thursday, killing the state’s estate tax in the process of enacting the 2012-13 budget. He also managed to kill off an $8 billion deficit without raising taxes—a model for fiscally squeezed states nationwide.”

Estate tax not necessary for government survival

Wall Street Journal July 2, 2011 [Written by Bill Batchelder (Speaker of the Ohio House of Representatives), Jack Boyle (co-founder of Citizens United to End Ohio's Estate Tax), and Dick Patten (President of the American Family Business Foundation and the American Family Business Institute, also writes for the Christian Science Monitor, Washington Times, and many more)]
http://online.wsj.com/article/SB10001424052702304447804576414013906238754.html

“While some opponents of repeal defend the death tax on the grounds that the state, like the federal government, needs the revenue, the truth is it yielded little revenue—around 2% of the average local jurisdiction’s revenues in Ohio, less than two-tenths of 1% for Columbus, and around 1% for Washington.”

Not a vital source of revenue

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“The death tax is no longer a vital source of federal revenues. In 2008, it raised about $24 billion, just above 1 percent of total federal tax collections. This is down considerably from 1940, when the estate tax raised more than 5 percent of all federal revenue.”

No government revenue lost

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“Proponents of the death tax argue that the federal government cannot afford to repeal the tax because doing so would increase the deficit too much. But repealing the death tax does not mean assets transferred at death would be tax-free. Instead, the heirs of the estate would pay capital gains taxes on the assets they acquire when they choose to sell them. The revenue from higher capital gains taxes combined with the increased revenue from the income tax (due to higher economic growth from repealing the death tax) means in the long run there would be no revenue loss.”

Death tax doesn’t prevent dynastic wealth

Heritage Foundation July 20, 2010 “The Economic Case Against the Death Tax” [Curtis S. Dubay is a Senior Analyst in Tax Policy in the Thomas A. Roe Institute for Economic Policy Studies at The Heritage Foundation]
http://www.heritage.org/research/reports/2010/07/the-economic-case-against-the-death-tax

“The death tax is no longer a vital source of federal revenues. In 2008, it raised about $24 billion, just above 1 percent of total federal tax collections. This is down considerably from 1940, when the estate tax raised more than 5 percent of all federal revenue.[6] Nor is the death tax necessary to prevent the accumulation of wealth in a limited few families. In today’s modern marketplace the well-off are more likely to accumulate their fortunes by creating new and innovative products demanded by the rapidly expanding global marketplace than through inheritance. The ability to make vast fortunes in the United States is not restricted to family lines or a lucky few. Statistics on income show that each American has ample opportunity to earn high incomes and accumulate wealth while doing so. Statistics also show that Americans have an equal chance of moving down the income scales. The estate tax is not necessary to ensure a more equal distribution of wealth. The opportunity to earn high incomes, and the equally high probability of earning lower incomes, work well enough on their own.”

Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2011 sourcebook, and are frequently contributed by non-COG authors. You will likely find material and sources in these cases that would not appear in the sourcebook. Also the backups are not intended to be complete. That said, we hope these cases will be useful to you; enjoy!

About the Author:  Joshua Rooney is going into his junior year in high school and his third year of debate. As an avid sports guy living in Tennessee, he didn’t really take debate seriously during environmental year, but broke at all three qualifiers he attended anyway. In his second year Josh “fell in love” with debate and turned into the nerd he was once scared of. Josh won two qualifiers, took second at the Region 7 Invitational, 21st at nationals, and went 27 – 2 with his intensely researched aff case. (All with his awesome partner, of course). Joshua is a COG 2011 author.

1AC: PLRA Reform

By Joshua Rooney

“Carved in stone over the entrance to the United States Supreme Court are the words “equal justice under law.” And for more than 140 years, the US Constitution has guaranteed to all persons the “equal protection of the laws.” But for those in prisons, jails, and juvenile facilities in the United States, the promise of equal justice is illusory. The Prison Litigation Reform Act (PLRA), passed by Congress in 1996, denies equal access to the courts to the more than 2.3 million incarcerated persons in the United States.”

Human Rights Watch (one of the world’s leading independent organizations dedicated to defending and protecting human rights), David Fathi primary author (Director of the US Program of Human Rights Watch, J.D.) “No Equal Justice: The Prison Litigation Reform Act in the United States”, June 2009 [JR]

In America everyone deserves justice, because of this we stand Resolved: The United States Federal Government should significantly reform its criminal justice system. I will layout the case for reform in six clear observations over the course of this speech. So let’s get started with:

Observation 1: Clarifications

Under this observation I will examine a few key terms for this round. First of all:

Criminal Justice System is defined by Professors of Law Richard Frase and Robert Weidner as: “A criminal justice system is a set of legal and social institutions for enforcing the criminal law in accordance with a defined set of procedural rules and limitations.” (RICHARD S. FRASE, (Professor of Law at University of Minnesota, J.D. Chicago Law School), ROBERT R. WEIDNER, (Professor at University on Minnesota, Ph.D.) Accessed July 2011 “Criminal Justice System – Structural And Theoretical Components Of Criminal Justice Systems, The Systems In Operation, The Importance Of Viewing Criminal Justice As A System’, http://law.jrank.org/pages/858/Criminal-Justice-System.html#ixzz1RzrXBRbA [JR])

Next we look to a basic explanation our specific topic for this debate, the Prison Litigation Reform Act, enacted in 1996 was intended to stop frivolous lawsuits by criminals through three specific provisions: the first being the preliminary screening in which ridiculous cases are thrown out, the second being the exhaustive principle, which sets strict standards on how a lawsuit can be brought to court, the third is known as the physical requirement, which requires all lawsuits to show physical damage. Throughout this round these are the three provisions we will debate.

Observation 2: Framework

Our value that we ask you to hold above all others in this debate is Justice; the criterion we propose is simply comparative advantage. Meaning whichever team provides the best advantage toward justice should receive the ballot.

Observation 3: Background

There are two basic background points that we must look to for clarification.

1st Point: Effects of the legislation were never properly reviewed, from attorney Robert Johnson in 2007

Robert M.A. Johnson, (Anoka County attorney in Anoka, Minnesota, and president of the National District Attorneys Association, Chair of the Criminal Justice Section), February 2007, Published by the American Bar Association: Criminal justice Section, http://www.savecoalition.org/americanbar.html [JR]

In 1996, Congress enacted the Prison Litigation Reform Act (PLRA). Pub. L. No. 104-34, 110 Stat. 1321 (1996). Although the PLRA placed substantial restrictions on prisoners’ access to the courts to vindicate constitutional and other legal rights, Congress never fully vetted the statute and its implications. A House Report issued in 1995 briefly discussed two House bills that contained some, but not all, of the provisions that were later included in the PLRA. H. R. REP. NO. 104-21, at 5-6 (1995). But the PLRA itself simply was inserted and approved as a rider to an omnibus appropriations bill, much to the consternation of members of Congress who recognized the need for in-depth review of legislation of such import. See, e.g., 142 CONG. REC. S2297 (1996) (statement of Senator Simon) (“I am very discouraged that this legislation was considered as one of the many issues on an appropriations bill. Legislation with such far-reaching implications certainly deserves to be thoroughly examined by the committee of jurisdiction and not passed as a rider to an appropriations bill.”).

2nd Point: The staggering statistics of prison rape and assault, from the Smart on Crime Coalition report in spring 2011

Smart on Crime Coalition, 2011, “Recommendations for the Administration and Congress”, http://www.besmartoncrime.org/pdf/Complete.pdf [JR]

“Sexual violence behind bars has reached crisis proportions. Based on a survey in prisons and jails nationwide, the Bureau of Justice Statistics estimated that 88,500 adult inmates were sexually abused in their current facility in the past year alone. In a similar survey of youth in juvenile facilities, a shocking one in eight reported being sexually abused in the previous year. In both types of facilities, staff-on-inmate abuse was more prevalent than abuse perpetrated by inmates.”

Observation 4: The Harms

Harm 1) Legitimate cases thrown out – two specific provisions in the PLRA cause this, as we see from Jennifer Wedekind of Georgetown Law in March 2011

Jennifer Wedekind (a journalist whose work has appeared in Mother Jones, In These Times, and the Multinational Monitor. She is a 2011 JD Candidate at Georgetown Law), March 2011, “Prison Rape, the PREA, and the PLRA”, Solidarity Watch, http://solitarywatch.com/2011/03/07/prison-rape-the-prea-and-the-plra/ [JR]

“In cases of sexual assault, inmates are most often stymied by two PLRA requirements — an exhaustion of all administrative remedies and a showing of physical harm. If a prisoner fails to comply with the technical and often arbitrary requirements of the administrative procedures, or if the inmate misses one of the filing deadlines — which may be as short as 48 hours — his or her right to sue is forever forfeited. Cases are frequently dismissed because of technical errors, because the wrong form was used or because the complaint was submitted to the wrong entity within the sprawling prison system.”

Harm 2) Juvenile offenders endangered, from Human Rights Watch in 2009

Human Rights Watch (one of the world’s leading independent organizations dedicated to defending and protecting human rights), David Fathi primary author (Director of the US Program of Human Rights Watch, J.D. Boalt Hall School of Law at the University of California, Berkeley), “No Equal Justice: The Prison Litigation Reform Act in the United States”, June 2009 [JR]

“The provisions of the PLRA apply not only to adult prisoners, but also to children confined in prisons, jails, and juvenile detention facilities. The exhaustion requirement has proven to be an especially formidable barrier to justice for incarcerated children, particularly in light of court rulings that efforts to exhaust on their behalf by parents or other adults do not satisfy the PLRA.”

An example, from Wendy Davis in June 2010:

Wendy N. Davis, (J.D., ABA Editor), June 2010, “Unlocking the Lawsuit”, Published by the American Bar Association, http://www.abajournal.com/magazine/article/unlocking_the_lawsuit/ [JR]

“As a minor, Steven Zick spent time in three juvenile centers for theft. While in custody he was allegedly jumped by other detainees, beaten with a sock-covered padlock and raped. His mother filed a civil rights lawsuit on his behalf against the superintendents of the facilities and other officials. She had complained repeatedly to the authorities before filing suit. But Zick himself didn’t file a grievance while in custody. As a result, U.S. District Judge Robert L. Miller in the Northern District of Indiana dismissed his federal claims. Miller ruled that the 1996 Prison Litigation Reform Act barred the lawsuit.”

Harm 3) Accountability of our prison officials lost – from law professors Margo Schlanger and Giovanna Shay in 2009:

Margo Schlanger (Professor of Law, Washington University in St. Louis; Visiting Professor of Law, University of Michigan Law School) and Giovanna Shay (Assistant Professor of Law, Western New England College School of Law), December, 2009, “PRESERVING THE RULE OF LAW IN AMERICA’S JAILS AND PRISONS: THE CASE FOR AMENDING THE PRISON LITIGATION REFORM ACT”, Accessed via SSRN [JR]

“When federal courthouses are barred to constitutionally meritorious cases, the resulting harm is not merely to the affected prisoners but to our entire system of accountability that ensures that government officials comply with constitutional mandates. The erection of hurdles to accountability should not be seen as “reducing the burden” for correctional administrators—it should be recognized as weakening the rule of law. The PLRA must be amended.”

When prison officials aren’t accountable, the abuse is magnified, as illustrated by an example from the Save Coalition:

Save Coalition (a group of organizations and individuals dedicated to protecting the U.S. prison, jail and youth detention population) as of July 12, 2011 “REFORM THE PRISON LITIGATION REFORM ACT: TOP 10 HARMFUL PLRA RESULTS” http://www.savecoalition.org/top10.html [JR]

“A man filed formal grievances after being harassed by fellow inmates. In response, the prison officers sprayed his cell with gas, punched him twice in the face, and later contaminated his food with feces. The man‘s lawsuit was thrown out of court because the only “visible” physical injury was an abrasion on his head and that was not enough to go forward under the PLRA.”

Observation 5: Plan

Per recommendation of the Safe on Crime Coalition, and many others we will enact the following plan:

Mandate 1: Repeal the exhaustive principle in the PLRA. [Repeal 42 U.S.C. § 1997e(a)]

Mandate 2: Repeal provision that prohibits prisoners from bringing lawsuits for mental or emotional injuries without demonstrating a “physical injury”. [Repeal 42 U.S.C. § 1997e(e)]

Enforcement: Will be the United States Federal Government, the President, the Department of Justice, and any other necessary federal agencies.

Funding will be provided through normal means.

Timeline: Legislative changes will come into place immediately upon an affirmative ballot.

As the affirmative team we reserve the right to clarify this plan in further speeches if needed.

Observation 6: Solvency

There are two points under this observation.

1) Advocacy: Screening provision is sufficient, from Elizabeth Alexander and John Boston, both J.D.’s in November 2008

Elizabeth Alexander, ( ACLU National Prison Project, J.D. Yale Law School) John Boston, (New York Legal Aid Prisoners’ Rights Project, J.D.), November 2008, “RETURN THE RULE OF LAW TO U.S. PRISONS AND JAILS BY FIXING THE PRISON LITIGATION REFORM ACT”, Published by the Safe On Crime Coalition http://2009transition.org/criminaljustice/index.php?option=com_content&view=article&id=28&Itemid=111 [JR]

“Over a decade of experience has shown that the PLRA’s preliminary screening requirement is sufficient to fulfill the legislation’s purpose. By requiring courts to summarily dismiss prisoner cases that are frivolous, malicious, or fail to state a legal claim, this provision has greatly reduced the burden on courts posed by prisoner cases that are not meritorious. However, other provisions of the PLRA must be amended or repealed in order to restore the rule of law to prisons and jails so that people, including children, can have their meritorious constitutional claims heard in court.”

2) Logical Analysis

(analyze the plan in your own words… something like harms are caused by these two provisions, we eliminate them and solve for the harm)

In conclusion, we have sacrificed justice and the rule of law for speed and ease in our lawsuit system. Our plan will solve for both frivolous lawsuits and make sure that laudable cases have a chance in court. The question I asked at the end is simply: is it ever worth allowing rape and assault to go unpunished?

Backup: PLRA Reform

Inherency/Background

Types of cases PLRA has dismissed

Deborah M. Golden (staff attorney at D.C. Prisoners’ Legal Services Project, J.D. Michigan Law School), June 2006, “The Prison Litigation Reform Act–A Proposal for Closing the Loophole for Rapists”, Published by the American Constitution Society, Accessed via SSRN

Courts have dismissed cases involving inmates’ nausea and vomiting, general bruising, bruised ribs, minor swelling, minor bleeding, abrasions and lacerations, skin fungus, dehydration, migraine headaches, increased blood pressure, aggravated hypertension, dizziness, insomnia, loss of appetite, burning eyes, shortness of breath, chest pain, mosquito bites resulting in fever, and the smell of cells smeared with feces rendering sleep impossible.

Recommend reforms in our plan were never voted on

Smart on Crime Coalition, 2011, “Recommendations for the Administration and Congress”, http://www.besmartoncrime.org/pdf/Complete.pdf

Legislation similar to the Prison Abuse Remedies Act (PARA), 81 originally introduced in the 110 the Congress, and the Prison Abuse Remedies Act of 2009 (PARA),82 introduced in the 111th Congress. The House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, held hearings on November 8, 2007 and April 22, 2008 regarding the problems with PLRA and the recommended reforms. However, neither bill received a committee vote.

Inherency: Proposed Regulations

Jennifer Wedekind (a journalist whose work has appeared in Mother Jones, In These Times, and the Multinational Monitor. She is a 2011 JD Candidate at Georgetown Law), March 2011, “Prison Rape, the PREA, and the PLRA”, Solidarity Watch, http://solitarywatch.com/2011/03/07/prison-rape-the-prea-and-the-plra/ [JR]

The Department of Justice in early February opened a comment period for proposed regulations under the Prison Rape Elimination Act (PREA). Passed in 2003, the Act requires the Attorney General to promulgate national standards for the detection, prevention, reduction and punishment of prison rape. While its ultimate aim is to stem the rampant sexual abuse that occurs in prisons and jails across the country, up until now PREA has largely been an aspirational and fact-gathering statute. The proposed regulations are structured around recommended standards put forth by the Prison Rape Elimination Commission, established by PREA, in a comprehensive 2009 report on the “the penological, physical, mental, medical, social, and economic impacts of prison rape in the United States.” However, subsequent comments by interested parties citing concerns about prison security and inmate “gamesmanship” have resulted in some of the recommendations being largely neutered. Additionally, a statutory mandate that no regulation impose substantial additional costs on prison authorities may limit the types of programs the regulations can implement. However, the comment period will allow for criticism and revision of the proposed regulations and provides an open forum for prisoner-rights advocates to be heard. The proposed regulations would ban cross-gender strip searches, create minimum standards for investigations following a report, require correctional facilities to provide medical and mental health care, and institute a zero tolerance policy for sexual assault and harassment. The regulations also purport to make the prison grievance systems more accessible, however they don’t go as far as most advocates think necessary. It remains to be seen what effect, if any, the regulations will have.

PLRA doesn’t even work right

Margo Schlanger, (Professor of Law, Washington University in St. Louis; Visiting Professor of Law, University of Michigan Law School) Giovanna Shay, (Assistant Professor of Law, Western New England College School of Law), December, 2009, “PRESERVING THE RULE OF LAW IN AMERICA’S JAILS AND PRISONS: THE CASE FOR AMENDING THE PRISON LITIGATION REFORM ACT”, Accessed via SSRN

If the PLRA were successfully “reduc[ing] the quantity and improv[ing] the quality of prisoner suits,” as its supporters intended, one would expect the dramatic decline in filings to be accompanied by a concomitant increase in plaintiffs’ success rates in the cases that remain. The evidence is quite the contrary. The shrunken inmate docket is less successful than before the PLRA’s enactment; more cases are dismissed, and fewer settle. An important explanation is that constitutionally meritorious cases are now faced with new and often insurmountable obstacles.

Assault statistics

Deborah M. Golden (staff attorney at D.C. Prisoners’ Legal Services Project, J.D. Michigan Law School), June 2006, “The Prison Litigation Reform Act–A Proposal for Closing the Loophole for Rapists”, Published by the American Constitution Society, Accessed via SSRN

Insufficient research has been conducted and insufficient data reported on the extent of prison rape. However, experts have conservatively estimated that at least 13 percent of the inmates in the United States have been sexually assaulted in prison. Many inmates have suffered repeated assaults. Under this estimate, nearly 200,000 inmates now incarcerated have been or will be the victims of prison rape. The total number of inmates who have been sexually assaulted in the past 20 years likely exceeds 1,000,000.

Harms: Legit cases thrown out

Exhaustion requirement is abusive

Margo Schlanger, (Professor of Law, Washington University in St. Louis; Visiting Professor of Law, University of Michigan Law School) Giovanna Shay, (Assistant Professor of Law, Western New England College School of Law), December, 2009, “PRESERVING THE RULE OF LAW IN AMERICA’S JAILS AND PRISONS: THE CASE FOR AMENDING THE PRISON LITIGATION REFORM ACT”, Accessed via SSRN

For this reason, the National Prison Rape Elimination Commission, a bipartisan commission appointed under the Prison Rape Elimination Act of 2003,52 has warned that the PLRA exhaustion requirement can “frustrate Congress’s goal of eliminating sexual abuse in U.S. prisons, jails, and detention centers.”53 The Commission wrote to the House Judiciary Committee that “[b]ecause of the emotional trauma and fear of retaliation or repeated abuse that many incarcerated rape victims experience, as well as the lack of confidentiality in many administrative grievance procedures, many victims find it extremely difficult—if not impossible—to meet the short timetables of administrative procedures.”54

Physical injury requirement prevents prosecution of many constitutional violations

Robert M.A. Johnson, (Anoka County attorney in Anoka, Minnesota, and president of the National District Attorneys Association, Chair of the Criminal Justice Section), February 2007, Published by the American Bar Association: Criminal justice Section, http://www.savecoalition.org/americanbar.html

Repeal the PLRA’s physical-injury requirement. The PLRA prohibits a prisoner from recovering damages for mental or emotional injuries suffered while in custody unless the prisoner also was injured physically. See 42 U.S. C. § 1997e(e). The effect of this provision is to leave a wide range of constitutional violations beyond redress, including some forms of torture.

Physical evidence requirement prevents prosecution of rape

Wendy N. Davis, (J.D., ABA Editor), June 2010, “Unlocking the Lawsuit”, Published by the American Bar Association, http://www.abajournal.com/magazine/article/unlocking_the_lawsuit/

In some situations, the PLRA’s requirement that inmates suffer physical injury to recover monetary damages has even excluded lawsuits stemming from sexual assaults. For instance, in 2006 in Hancock v. Payne, U.S. Magistrate Judge John Roper Sr. in the Southern District of Mississippi dismissed a lawsuit by several male inmates who alleged they were sodomized. “The plaintiffs do not make any claim of physical injury beyond the bare allegation of sexual assault,” he wrote.

Couldn’t prosecute Abu Ghraib under U.S. law

Human Rights Watch, (One of the world’s leading independent organizations dedicated to defending and protecting human rights), David Fathi primary author, (Director of the US Program of Human Rights Watch, J.D. Boalt Hall School of Law at the University of California, Berkeley), “No Equal Justice: The Prison Litigation Reform Act in the United States”, June 2009

The physical injury requirement. A prisoner may not recover compensation for “mental or emotional injury” unless she makes a “prior showing of physical injury.”4 Under this provision, prisoners who have been subjected to sexual assault and other intentional abuse by prison staff have been denied a remedy. Indeed, because of this provision, many of the abuses that took place in Iraq’s Abu Ghraib prison would not have been compensable if they had occurred in a US prison or jail.

Harms: 2) Application to Juvenile Offenders

Three harms needing reform

Human Rights Watch, (One of the world’s leading independent organizations dedicated to defending and protecting human rights), David Fathi primary author, (Director of the US Program of Human Rights Watch, J.D. Boalt Hall School of Law at the University of California, Berkeley), “No Equal Justice: The Prison Litigation Reform Act in the United States”, June 2009

Application to children. The provisions of the PLRA apply not only to adult prisoners, but also to children confined in prisons, jails, and juvenile detention facilities. The exhaustion requirement has proven to be an especially formidable barrier to justice for incarcerated children, particularly in light of court rulings that efforts to exhaust on their behalf by parents or other adults do not satisfy the PLRA.

Harms: 3) Accountability

Inmates usually just punished for complaining

Jennifer Wedekind (a journalist whose work has appeared in Mother Jones, In These Times, and the Multinational Monitor. She is a 2011 JD Candidate at Georgetown Law), March 2011, “Prison Rape, the PREA, and the PLRA”, Solidarity Watch, http://solitarywatch.com/2011/03/07/prison-rape-the-prea-and-the-plra/ [JR]

When a prisoner comes forward and reports a sexual assault, he or she is more likely to face retribution than redress. Complaining prisoners frequently face retaliatory harassment, discipline or further abuse. A full 25 percent of inmate victims are summarily sent to solitary confinement, according to the Department of Justice’s own numbers.

Undermines accountability

Wendy N. Davis, (J.D., ABA Editor), June 2010, “Unlocking the Lawsuit”, Published by the American Bar Association, http://www.abajournal.com/magazine/article/unlocking_the_lawsuit/

Shay, an associate professor at Western New England College School of Law, says that the court system is no longer in a position to intervene to stem many abuses. The PLRA “undermines one of the few accountability mechanisms that we have for prisons,” says Shay. “When there’s no oversight, it’s hard to keep corrections cultures healthy,” she adds.

Harms: 4) Other

Violates convention against torture

Elizabeth Alexander, ( ACLU National Prison Project, J.D. Yale Law School) John Boston, (New York Legal Aid Prisoners’ Rights Project), November 2008, “RETURN THE RULE OF LAW TO U.S. PRISONS AND JAILS BY FIXING THE PRISON LITIGATION REFORM ACT”, Published by the Safe On Crime Coalition http://2009transition.org/criminaljustice/index.php?option=com_content&view=article&id=28&Itemid=111

“The United States ratified the United Nations Convention Against Torture in 1994, in which “torture” is defined as any punishment that may inflict severe pain or suffering, whether mental or physical. However, under the PLRA, a prisoner must prove physical injury in order to obtain compensatory damages, meaning countless prisoners who experience unconscionable living conditions or sexual and emotional abuses do not have access to appropriate judicial remedies. The Committee Against Torture recently reviewed the United States’ compliance with the treaty and found the PLRA’s physical injury requirement to be an explicit violation. The Committee urges the repeal of the physical injury requirement.”

Rape is not frivolous, it is a serious and heinous crime

Deborah M. Golden (staff attorney at D.C. Prisoners’ Legal Services Project, J.D. Michigan Law School), June 2006, “The Prison Litigation Reform Act–A Proposal for Closing the Loophole for Rapists”, Published by the American Constitution Society, Accessed via SSRN

Rape is simply not equivalent to receiving chunky peanut butter or bad haircuts, examples of subjects of frivolous complaints cited by the PLRA’s proponents. Rape is so heinous and injurious that it falls into that category that “virtually everybody believes” 53 is too torturous to force upon any convicted criminal. Rape is much more than an “emotional injury.”54 “Prison rape, like all other forms of sexual assault, is torture.”55 Rape, therefore, must be a compensable injury within the meaning of [PLRA] 42 U.S.C. § 1997e(e).

Advocacy

Additional advocacy to investigate:

General legislative recommendations: http://2009transition.org/criminaljustice/index.php?option=com_content&view=article&id=28&Itemid=111

Amend the physical evidence requirement to include other forms of assault: http://www.acslaw.org/files/Golden-%20Prison%20Litigation%20Reform%20Act%20-%20June%202006%20-%20Advance%20Vol%201.pdf

Amend the requirement for exhaustion of administrative remedies

Robert M.A. Johnson, (Anoka County attorney in Anoka, Minnesota, and president of the National District Attorneys Association, Chair of the Criminal Justice Section), February 2007, Published by the American Bar Association: Criminal justice Section, http://www.savecoalition.org/americanbar.html

Amend the requirement for exhaustion of administrative remedies to provide that prisoners who have filed a lawsuit within the time period set by the statute of limitations but have not exhausted their administrative remedies can pursue their claim through an administrative-remedy process while the lawsuit is stayed. The PLRA requires prisoners to exhaust available administrative remedies before filing a lawsuit that challenges the legality of the conditions of their confinement under 42 U.S. C. § 1983 or any other “[f]ederal law.” In Wood ford v. Ngo, 126 S. Ct. 2378 (2006), the Supreme Court held that this exhaustion requirement implicitly includes a procedural-default sanction. In other words, if a prisoner does not file a grievance within the timelines set by prison officials, the prisoner has failed to exhaust administrative remedies and is barred from bringing suit. In an iambics brief filed with the Supreme Court, the American Bar Association strongly disagreed with this interpretation of the PLRA’s exhaustion requirement One of the problems with the exhaustion requirement, as it is currently constructed, is that it effectively closes the courthouse door to many prisoners. See, e.g., Gauntt v. Miracle, 2002 WL 1465763 (N.D. Ohio) (complaint alleging injuries from a correctional officer’s excessive use of force dismissed because of the prisoner’s failure to meet a 5-day deadline in filing a grievance). The deadlines for filing a prison grievance typically are very short, usually no more than fifteen days and in some states as little as two to five days.

Repeal the PLRA provisions extending its requirements to juveniles

Robert M.A. Johnson, (Anoka County attorney in Anoka, Minnesota, and president of the National District Attorneys Association, Chair of the Criminal Justice Section), February 2007, Published by the American Bar Association: Criminal justice Section, http://www.savecoalition.org/americanbar.html

Repeal the PLRA provisions extending its requirements to juveniles confined in juvenile detention and correctional facilities. The PLRA’s proponents professed that its provisions were designed to curb the filing of frivolous lawsuits by prisoners. Juveniles incarcerated in juvenile detention and correctional facilities had not filed the frivolous lawsuits that those lobbying for the PLRA’s enactment referred to in largely unsubstantiated anecdotes.

American Bar Association recommendations to congress

Robert M.A. Johnson, (Anoka County attorney in Anoka, Minnesota, and president of the National District Attorneys Association, Chair of the Criminal Justice Section), February 2007, Published by the American Bar Association: Criminal justice Section, http://www.savecoalition.org/americanbar.html

RESOLVED, That the American Bar Association urges Congress to repeal or amend specified provisions of the Prison Litigation Reform Act (PLRA) as follows:
1. Repeal the requirement that prisoners (including committed and detained juveniles and pretrial detainees, as well as sentenced prisoners) suffer a physical injury in order to recover for mental or emotional injuries caused by their subjection to cruel and unusual punishment or other illegal conduct;
2. Amend the requirement for exhaustion of administrative remedies to require that a prisoner who has not exhausted administrative remedies at the time a lawsuit is filed be permitted to pursue the claim through an administrative- remedy process, with the lawsuit stayed for up to 90 days pending the administrative processing of the claim;
3. Repeal the restrictions on the equitable authority of federal courts in conditions-of-confinement cases;
4. Amend the PLRA to allow prisoners who prevail on civil rights claims to recover attorney’s fees on the same basis as the general public in civil rights cases;
5. Repeal the provisions extending the PLRA to juveniles confined in juvenile detention and correctional facilities; and
6. Repeal the filing fee provisions that apply only to prisoners.

Prison experts and former officials all calling for reform

Human Rights Watch, (One of the world’s leading independent organizations dedicated to defending and protecting human rights), David Fathi primary author, (Director of the US Program of Human Rights Watch, J.D. Boalt Hall School of Law at the University of California, Berkeley), “No Equal Justice: The Prison Litigation Reform Act in the United States”, June 2009

Jeanne Woodford, the former warden of San Quentin State Prison and former director of the California Department of Corrections, told Human Rights Watch that she believes the PLRA has endangered the progress that has been made in prison administration: I do think the PLRA does need to be reformed. I think that there’s prison experts around the country who would agree with that…. I’m told that many people in [the American Correctional Association] believe that as well. That they’re starting to see abuses…. A lot of the corrections professionals were telling me that they had concerns that a lot of the steps forward they’d made in Texas were reverting because of the PLRA. And I can see that happening in California too.

Solvency

The basic part of the PLRA should remain

Save Coalition (a group of organizations and individuals dedicated to protecting the U.S. prison, jail and youth detention population) as of July 12, 2011 “REFORM THE PRISON LITIGATION REFORM ACT: TOP 10 HARMFUL PLRA RESULTS” http://www.savecoalition.org/top10.html [JR]

The core of the PLRA is its preliminary screening requirement. Prisoner cases that are frivolous or malicious, that fail to state a claim on which relief can be granted, or that seek damages from a defendant who is immune from them, are to be dismissed out of hand, without service of process on the defendants and without requiring prison officials to respond.1 As a result of this pre-service screening, correctional administrators no longer see a large volume of prisoner cases, and courts only must deal with those cases once. This provision directly addresses the problem of frivolous prisoner litigation and should remain the law. Unfortunately, over the past twelve years, it has become apparent that a number of provisions of the Prison Litigation Reform Act (“PLRA”)2 cast shadows of constitutional immunity, contravening our core commitment to constitutional governance. The PLRA’s obstacles to meritorious lawsuits are undermining the rule of law in our prisons and jails, granting the government near-impunity to violate the rights of prisoners without fear of consequences.

Preliminary screenings fine, other provisions not

Human Rights Watch, (One of the world’s leading independent organizations dedicated to defending and protecting human rights), David Fathi primary author, (Director of the US Program of Human Rights Watch, J.D. Boalt Hall School of Law at the University of California, Berkeley), “No Equal Justice: The Prison Litigation Reform Act in the United States”, June 2009

The PLRA’s sponsors argued that the law was necessary to deal with “frivolous” lawsuits brought by prisoners. Some prisoners, like some non-prisoners, do file frivolous suits, and the PLRA includes the reasonable requirement that prisoner cases be subject to a preliminary screening process and be immediately dismissed if they are frivolous or malicious, or if they fail to state a claim on which relief can be granted.8 But the cases described in this report show that other provisions of the PLRA have resulted in dismissal of claims involving serious physical injury, sexual assault, and intentional abuse by prison staff—claims that no reasonable person would characterize as frivolous.

PLRA’s screening works and is sufficient, other provisions must be reformed

Elizabeth Alexander, ( ACLU National Prison Project, J.D. Yale Law School) John Boston, (New York Legal Aid Prisoners’ Rights Project), November 2008, “RETURN THE RULE OF LAW TO U.S. PRISONS AND JAILS BY FIXING THE PRISON LITIGATION REFORM ACT”, Published by the Safe On Crime Coalition http://2009transition.org/criminaljustice/index.php?option=com_content&view=article&id=28&Itemid=111

“Over a decade of experience has shown that the PLRA’s preliminary screening requirement is sufficient to fulfill the legislation’s purpose. By requiring courts to summarily dismiss prisoner cases that are frivolous, malicious, or fail to state a legal claim, this provision has greatly reduced the burden on courts posed by prisoner cases that are not meritorious. However, other provisions of the PLRA must be amended or repealed in order to restore the rule of law to prisons and jails so that people, including children, can have their meritorious constitutional claims heard in court.”

Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2011 sourcebook, and are frequently contributed by non-COG authors. You will likely find material and sources in these cases that would not appear in the sourcebook. Also the backups are not intended to be complete. That said, we hope these cases will be useful to you; enjoy!

About the Author: Caleb participated in debate in Region 4 for four years. With his partner, he took 2nd place at the 2010 NCFCA Regional 4 championship, qualifying to Nationals in both debate and Apologetics. Caleb is a COG 2011 author.

Author’s Note: The specific version of the flat tax advocated in this case is the Hall-Rabushka model, which is widely accepted by economists and has formed the foundation for most other flat tax proposals. The most recent version of the Hall-Rabushka model is accessible online, at http://www.hoover.org/publications/books/8329. The flat tax act they recommend is accessible at http://media.hoover.org/sites/default/files/documents/0817993115_211.pdf.

1AC: Flat Tax

By Caleb Smith

Imagine I told you that you could file your income taxes on a post card—no other forms needed. Imagine that you could fill out that post card in the time it takes to answer a 10 question survey

Now stop imagining. Believe it or not, we can simplify and improve the federal income tax so that it could fit on an index card, and benefit the economy at the same time. Because we believe that the United States income tax is excessively complicated and unnecessarily progressive, we stand Resolved: That the United States federal government should substantially reform its revenue generation policies.

I’d like to start by defining a few key terms of this resolution.

DEFINITIONS

Revenue: “The income of a government from all sources appropriated for the payment of the public expenses.” (American Heritage Dictionary of the English Language)

Policies: “Courses of action adopted and pursued by a government, ruler, political party, etc.” (Dictionary.com, “policy” definition pluralized)

Progressive Tax: “A tax that takes a higher proportion of large incomes than of small ones.” (American Heritage New Dictionary of Cultural Literacy)

INHERENCY

Inherency 1. (Chart) Income taxes = 50% of revenue

The Heritage Foundation, 2011 Budget Chart Book, 2011 [data from 2010], “Federal Revenues by Source,” “PERCENTAGE OF TOTAL FEDERAL REVENUE (2010), accessed 7/9/11, http://www.heritage.org/budgetchartbook/federal-revenue-sources

[This is a chart, so I'll summarize what it says. You can ask for the chart after the round if you wish. Reading the chart, we see that individual income taxes constitute 41.6% of federal revenue, while corporate income taxes constitute 8.9% of federal revenue; doing the math, these two taxes combine to constitute 50.5% of federal revenue.]

Inherency 2. (Table) Individual Income Tax progressive

Tax Policy Center (a non-partisan organization, staffed by top national experts in taxes, expenditure, budget policy, and microsimulation modeling, which analyzes current and long-term tax issues ), “Individual Income Tax Parameters (Including Brackets), 1945-2011,” January 2011, Accessed 7/9/11 http://www.taxpolicycenter.org/taxfacts/displayafact.cfm?Docid=474

[Again, this is a chart, so I'll summarize what it says. You can ask for the chart after the round if you wish. Reading the table, we see that the Marginal Rates for the 2011 Individual Income Tax begin at 10% and peak at 35%. Higher incomes are taxed at higher rates, fulfilling our definition of a progressive tax.]

Inherency 3: Corporate Income Tax progressive

IRS, Internal Revenue Bulletin: 2008-6, February 11, 2008, T.D. 9369, “Calculating and Apportioning the Section 11(b)(1) Additional Tax Under Section 1561 for Controlled Groups,” Accessed 7/9/11 http://www.irs.gov/irb/2008-06_IRB/ar07.html

“The income tax rates imposed on a corporation’s income increase with each higher bracketed range of taxable income. The following chart shows the various tax rates imposed on a corporation and the ranges of taxable income that are subject to each of these tax rates:”

[Reading the chart: the rate can be 15%, 25%, 34%, or 35%, depending on the corporation's income]

Thus, we see that the individual and corporate income taxes are both currently progressive, and that combined these taxes make up a full 50% of our nations revenue. As the affirmative team, we believe that can we provide substantial advantages by eliminating the progressivty and complexity of these revenue generation policies. In order to do so, we offer the following

PLAN

1. Income Tax Abolished. All current laws, rules, and regulations pertaining to the individual and corporate income taxes shall be abolished
2. Flat Tax. The United States Federal Government shall pass the Hall-Rabushka* Flat Tax Act, as given in their 2007 book, “The Flat Tax.” This act establishes a flat 19% tax on individual and corporate income, establishing exemptions for the filer/filers and his/her/their dependents.

3. Exemptions. However, exemptions shall be valued according to Hall-Rabushka’s 1995 recommendations**, which include:

1. a $20,000 exemption for married, filing jointly
2. a $6,000 exemption per dependent

4. This plan shall come into effect at the beginning of the next fiscal year, with the exception of tax extensions that were begun before the enactment of this plan.

(*Prof. Robert Hall (Professor of Economics at Stanford University, Ph.D.) and Alvin Rabushka (Senior Fellow at the Hoover Institution, Ph.D. In Political Science). **See the sample tax return card, which is based upon their 1995 recommendations.)

This plan shall be passed by the United States Congress and signed by the President, and enforced by the IRS and any other necessary federal agency. Since the flat tax is much simpler to enforce, the funding for enforcement will follow existing budgets.

Since we clearly can’t present the entire act in this speech, we reserve the right to explain and clarify our plan as needed.

SOLVENCY: HISTORICAL PRECEDENT

Flat tax successful in 24 countries

Daniel J. Mitchell (Ph.D in economics, senior economist at the Cato Institute, leading national advocate for the flat tax), “The Global Flat Tax Revolution: Lessons for Policy Makers,” Prosperitas: A Policy Analysis from the Center for Freedom and Prosperity Foundation, Vol. VIII, Issue I, February 2008, Accessed 7/8/11 http://freedomandprosperity.org/2008/publications/the-global-flat-tax-revolution-lessons-for-policy-makers/

Perhaps the most exciting development, though, is the flat tax revolution. The number will probably be higher by the time you are reading this, but as this article went to press, 24 nations have adopted some form of single-rate tax regime. These reforms have generated impressive results, including faster growth, more jobs, and increased competitiveness. While politicians generally are most concerned about losing tax revenue, they should not worry. Flat tax systems oftentimes generate higher tax revenues because of more income and better compliance.

ADVANTAGES

Advantage 1: Eliminates complexity—saves tens of billions compliance costs

Daniel J. Mitchell (Ph.D in economics, senior economist at the Cato Institute, leading national advocate for the flat tax), The Heritage Foundation, “A Brief Guide to the Flat Tax,”July 2005, Accessed 7/ 9/11 http://www.heritage.org/research/reports/2005/07/a-brief-guide-to-the-flat-tax

“If enacted, a flat tax would yield major benefits to the nation, including:

[later in the same list of benefits:]

Simplicity. Complexity is a hidden tax amounting to more than $100 billion. This is the cost of tax preparation, lawyers, accountants, and other resources used to comply with the Internal Revenue Code. The Internal Revenue Service even admits that the current tax code requires taxpayers to devote 6.6 billion hours each year to their tax returns. Yet even this commitment of time is no guarantee of accuracy. The code is so complex that even tax experts and the IRS often make mistakes. All taxpayers, from General Motors to a hamburger-flipping teenager, would be able to fill out their tax return on a postcard-sized form, and compliance costs would drop by tens of billions of dollars.”

Advantage 2: Ends corruption in tax policy

Same source

“An End to Micromanaging and Political Favoritism. A flat tax gets rid of all deductions, loopholes, credits, and exemptions. Politicians would lose all ability to pick winners and losers, reward friends and punish enemies, and use the tax code to impose their values on the economy. Not only does this end a major source of political corruption, but it is also pro-growth since companies would no longer squander resources lobbying politicians or making foolish investments just to obtain favorable tax treatment.”

Advantage 3: Economic boost/income growth

Same source

“Faster Economic Growth. A flat tax would spur increased work, saving, and investment. By increasing incentives to engage in productive economic behavior, it would also boost the economy’s long-term growth rate. Even if a flat tax boosted long-term growth by only 0.5 percent, the income of the average family of four after 10 years would be as much as $5,000 higher than it would be under current tax laws.”

I’d like to conclude by countering the argument that a flat tax hurts low and middle income families—an argument I’m sure my opponents will probably make.

Let’s put this in perspective. According to information from the U.S. Census Bureau* and the Center on Budget and Policy Priorities**, an average middle-income family—let’s say with two children—will earn about $60,000 ($62,363, to be exact) and pay 4.7% of that as taxes, which comes out to $2,820.

Under our model, the household will receive a $32,000 exemption for the husband, wife, and children, and their remaining income will be taxed at 19%. That’s $5,320 in taxes, or 8.9% of the original income. While they have paid $2,500 more; this certainly won’t push them below the poverty level! And remember, even at minimum growth, a flat tax will expand that family’s income by $5,000—more than compensating for their increased taxes! In addition, it’s very important to realize that if the family earned under $32,000, they would be completely covered by the exemption and would not pay a dime.

A flat tax strengthens the economy and reduces compliance costs and time. It ends political corruption and stops the manipulation of loopholes in the complex tax code. It makes taxes so straightforward everyone can easily comply—and no one can evade. And the benefits go to everyone; the rich, the poor, and the middle class alike. Because we believe in a better April 15th, we stand Resolved: That the United States federal government should substantially reform its revenue generation policies.

* U.S. Census Bureau, Fact Sheets, United States, “2005-2009 American Community Survey 5-Year Estimates Data Profile Highlights:,” 2005-2009, Accessed 6/8/11 http://factfinder.census.gov/servlet/ACSSAFFFacts

** Center on Budget and Policy Priorities (national policy organization devoted to the study and distribution of fiscal and economic issues, and how they impact low and middle income Americans), Chuck Marr (Director of Federal Tax Policy at the Center on Budget and Policy Priorities, B.A. In economics) and Gillian Brunet (B.A. In government and mathematics), “Federal Income Taxes on Middle-Income Families at Historically Low Levels,” Updated April 2011, Accessed 6/8/11 http://www.cbpp.org/cms/index.cfm?fa=view&id=3151

Backup: Flat Tax

The postcard tax return

Daniel J. Mitchell (Ph.D in economics, senior economist at the Cato Institute, leading national advocate for the flat tax), The Heritage Foundation, “A Brief Guide to the Flat Tax,”July 2005, Accessed 7/ 9/11 http://www.heritage.org/research/reports/2005/07/a-brief-guide-to-the-flat-tax
Historical Precedent—Flat tax works—Even socialists like it!

Daniel J. Mitchell (Ph.D in economics, senior economist at the Cato Institute), “The Global Flat Tax Revolution: Lessons for Policy Makers,” Prosperitas: A Policy Analysis from the Center for Freedom and Prosperity Foundation, Vol. VIII, Issue I, February 2008, Accessed 7/8/11 http://freedomandprosperity.org/2008/publications/the-global-flat-tax-revolution-lessons-for-policy-makers/

“No nation has returned to a so-called progressive tax. Notwithstanding faulty analysis from the IMF, the flat tax seems to be remarkably resilient. None of the flat tax nations have returned to a discriminatory rate structure. The most recent threats to single-rate regimes came in Russia, where lawmakers overwhelmingly rejected a scheme to create a progressive system with a top rate of 30 percent.5 More impressive, Slovakian voters in 2006 elected a coalition of socialists and nationalists, leading many to conclude that this did not bode well for the flat tax implemented by the outgoing government. Yet Slovakia’s new leaders decided not to tinker with the goose that was laying golden eggs and the flat tax seems securely enshrined.6″

Overview—opening quote

Daniel J. Mitchell (Ph.D in economics, senior economist at the Cato Institute, leading national advocate for the flat tax), The Heritage Foundation, “A Brief Guide to the Flat Tax,”July 2005, Accessed 7/ 9/11 http://www.heritage.org/research/reports/2005/07/a-brief-guide-to-the-flat-tax

Unlike the current system, a flat tax is simple, fair, and good for growth. Instead of the 893 forms required by the current system, a flat tax would use only two postcard-sized forms: one for labor income and the other for business and capital income. Unlike the current system, which discriminates based on the source, use, and level of income, a flat tax treats all taxpayers equally, fulfilling the “equal justice under law” principle etched above the main entrance to the U.S. Supreme Court building. And unlike the current system, which punishes people for contributing to the nation’s wealth, a flat tax would lower marginal tax rates and eliminate the tax bias against saving and investment, thus ensuring better economic performance in a competitive global economy.

Generous household exemption

Daniel J. Mitchell (Ph.D in economics, senior economist at the Cato Institute, leading national advocate for the flat tax), The Heritage Foundation, “A Brief Guide to the Flat Tax,”July 2005, Accessed 7/ 9/11 http://www.heritage.org/research/reports/2005/07/a-brief-guide-to-the-flat-tax

Family-Friendly. All flat tax proposals have one “loophole.” Households receive a generous exemption based on family size. For instance, a family of four would not begin to pay tax until its annual income reached more than $30,000.

Reduces penalties for productive behavior

Daniel J. Mitchell (Ph.D in economics, senior economist at the Cato Institute, leading national advocate for the flat tax), The Heritage Foundation, “A Brief Guide to the Flat Tax,”July 2005, Accessed 7/ 9/11 http://www.heritage.org/research/reports/2005/07/a-brief-guide-to-the-flat-tax

A Single Flat Rate. All flat tax proposals have a single rate, usually less than 20 percent. The low, flat rate solves the problem of high marginal tax rates by reducing penalties against productive behavior, such as work, risk taking, and entrepreneurship.

Fair/Simple—eliminates abuse

Daniel J. Mitchell (Ph.D in economics, senior economist at the Cato Institute, leading national advocate for the flat tax), The Heritage Foundation, “A Brief Guide to the Flat Tax,”July 2005, Accessed 7/ 9/11 http://www.heritage.org/research/reports/2005/07/a-brief-guide-to-the-flat-tax

However, the most persuasive feature of a flat tax for many Americans is its fairness. The complicated documents, instruction manuals, and numerous forms that taxpayers struggle to decipher every April would be replaced by a brief set of instructions and two simple postcards. This radical reform appeals to citizens who not only resent the time and expense consumed by filing their own tax forms, but also suspect that the existing maze of credits, deductions, and exemptions gives a special advantage to those who wield political power and can afford expert tax advisers.

Flat Tax–Successful/Spreading

Daniel J. Mitchell (Ph.D in economics, senior economist at the Cato Institute, leading national advocate for the flat tax), The Heritage Foundation, “A Brief Guide to the Flat Tax,”July 2005, Accessed 7/ 9/11 http://www.heritage.org/research/reports/2005/07/a-brief-guide-to-the-flat-tax

If enacted, a flat tax would yield major benefits to the nation, including:

[later, in the same context:]

Global Competitiveness. In a remarkable development, former communist nations are leading a global tax reform revolution. Estonia was the first to adopt a flat tax, implementing a 26 percent rate in 1994, just a few years after the collapse of the Soviet Union. The other two Baltic republics of the former Soviet Union enacted flat taxes in the mid-1990s, with Latvia choosing a 25 percent rate and Lithuania picking 33 percent. Along with other free-market reforms, the flat tax significantly improved economic growth, and the “Baltic Tigers” became role models for the region. Learning from its neighbors, Russia stunned the world by adopting a 13 percent flat tax, which went into effect in 2001.

The Russian flat tax quickly yielded positive results: The economy prospered, and revenues poured into government coffers since tax evasion and avoidance became much less profitable. The flat tax then spread to Serbia, which in 2003 chose a 14 percent rate. Slovakia hopped on the bandwagon the following year with a 19 percent flat tax, as did Ukraine, which chose a 13 percent tax rate.

No tax is perfect, but flat tax best

Daniel J. Mitchell (Ph.D in economics, senior economist at the Cato Institute, leading national advocate for the flat tax), The Heritage Foundation, “A Brief Guide to the Flat Tax,”July 2005, Accessed 7/ 9/11 http://www.heritage.org/research/reports/2005/07/a-brief-guide-to-the-flat-tax

The current income tax system punishes the economy, imposes heavy compliance costs on taxpayers, rewards special interests, and makes America less competitive. A flat tax would dramatically reduce these ill effects. Perhaps more important, it would reduce the federal government’s power over the lives of taxpayers and get the government out of the business of trying to micromanage the economy.

There will never be a tax that is good for the economy, but the flat tax moves the system much closer to where it should be—raising the revenues that government demands, but in the least destructive and least intrusive way possible.

AT: Not realistic for America b/c foreign results can’t be replicated

Daniel J. Mitchell (Ph.D in economics, senior economist at the Cato Institute, leading national advocate for the flat tax), The Heritage Foundation, “A Brief Guide to the Flat Tax,”July 2005, Accessed 7/ 9/11 http://www.heritage.org/research/reports/2005/07/a-brief-guide-to-the-flat-tax

The shift to flat taxes is dramatic. For decades, critics said a flat tax was unrealistic and that Hong Kong was a special case. They never explained why it was a special case, but supposedly a flat tax could not work anyplace else. They made similar assertions after the Baltic nations adopted flat tax systems, but adapted their arguments to suggest that a flat tax only worked in small jurisdictions. But then when Russia and other large Eastern European nations hopped on the flat tax bandwagon, opponents began to concede that flat tax regimes were feasible, but rationalized that tax reform worked only in transition economies. Now that Iceland has a flat tax, one can only imagine the new excuses that will be used to argue the flat tax does not work or that it is impractical.

Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2011 sourcebook, and are frequently contributed by non-COG authors. You will likely find material and sources in these cases that would not appear in the sourcebook. Also the backups are not intended to be complete. That said, we hope these cases will be useful to you; enjoy!

About the Author: Josh Wilson, formerly known for dominating NCFCA Region 5 in 2009-2010, is currently entering his sophomore year at Kansas State University where he is pursuing a degree in legal communications and participates in collegiate mock trial. Josh is a COG 2011 author.

1AC: Raise the Social Security Tax Cap

By Josh Wilson

“In 2016, projected outlays for Social Security will begin to exceed the tax revenues earmarked for the program (see the top panel of Figure 5). Once that happens, the federal government will need to draw on other resources to fund Social Security, even though the trust funds will continue to be credited with interest on the balances in the funds. The economic and budgetary effects of having outlays exceed tax revenues are the same with or without trust funds.

The financial structure of the Social Security program has resulted in a redistribution of resources between generations: each generation of workers pays taxes that are largely used to make payments to the people already eligible for benefits. From Social Security’s earliest days, a contentious issue was whether the benefits that workers and their families received should be prefunded using the taxes that those workers paid, rather than the taxes paid by current workers. As the program was enacted in 1935, revenues dedicated to Social Security would have exceeded outlays by enough to build up very large surpluses. In effect, those excess revenues would have helped fund, in advance, the benefits that the same workers would receive later. Opponents of prefunding argued that such an arrangement would result either in pressure to increase spending or in federal government ownership of private assets. Later expansions to the program, along with postponement of increases in the payroll tax rate that were originally scheduled to occur during the 1940s, essentially moved Social Security to a pay-as-you-go basis.(23)

That pay-as-you-go structure has worked, although with many changes in taxes and benefits along the way. But it has worked largely because the labor force has grown rapidly during much of the program’s history. That situation is about to change, as the number of Social Security beneficiaries begins to increase much faster than the number of workers.”

That was a quote from the United States Congressional Budget Office (“Social Security: A Primer, Chapter 2: An Overview of the Social Security Program” September 2001 http://www.cbo.gov/doc.cfm?index=3213&type=0&sequence=3)

It is in order to correct these problems that my partner and I stand resolved: that the United States Federal Government should significantly reform its revenue generation policies.

OBSERVATION 1. DEFINITIONS/ANALYSIS

To start things off let’s define some of the key words in the resolution just so that everybody is on the same page. Sources will be given upon the negative’s request.

Significant: “Important; of consequence” (Random House Websters College Dictionary, 1999 “Significant”)

Reform: “To put or change into an improved form or condition” (Merriam-Webster Online Dictionary. 2009 http://www.merriam-webster.com/dictionary/REFORM)

Revenue generation policies: “Policies that determine the rates of taxation; the things that are taxable and the things that are exempt; the revenue administration system, which is the way in which the policies are implemented and revenue is actually collected; and the extent of economic activity, the things that can be taxed.” (POLITICAL ECONOMY RESEARCH INSTITUTE, “OPTIONS FOR REVENUE GENERATION IN POST-CONFLICT ENVIRONMENTS” Michael Carnahan (PhD in economics from the University of Wisconsin at Madison, visiting fellow at the Crawford School of Economics and Government, Australian National University. Served as senior adviser to the Minister of Finance in Afghanistan in 2002–04, and as director of the Budget Office in the East Timor Transitional Administration in 2000–01. Worked in the Departments of Treasury and Finance in the Australian Government.) http://www.cic.nyu.edu/peacebuilding/docs/Revenue%20Generation%20in%20Post-Conflict%20Environments.pdf)

B. ANALYSIS: Now that we know what we’re talking about let’s move on to our case where my partner and I will show that the status quo revenue generation policy will lead to the bankruptcy of social security, but that we can correct the situation by reforming our revenue generation policy. We do not claim to create utopia; rather, we need to prove that our plan produces results that are better than the status quo. When this is shown, we believe you will have every reason vote affirmative.

INHERENCY/HARMS: Now let’s see how things currently stand

1) Social Security is predicted to collapse by 2036

Bill Bischoff (tax specialist and licensed CPA for 25 years, tax columnist for Smart­Money.com) “Just What You Needed: Higher Taxes” May 26, 2011 http://www.smartmoney.com/taxes/income/just-what-you-needed-higher-taxes-1306271420886/?zone=intromessage&zone=intromessage

“Another misunderstanding about Social Security: Some people think the government has set up an account with their name on it to hold the money to pay for their future Social Security benefits. After all, that must be where all the Social Security taxes on people’s wages and self-employment income go, right? Wrong. There are no individual accounts. In fact, when the Social Security system runs a surplus (which it has in most years until now), the federal government sucks out the excess cash and issues the system an IOU. But the only way those IOUs will ever be paid is through future taxes. Meanwhile, the system is now projected to run out of money (including those nebulous IOUs) in 2036 unless taxes are raised or benefits are cut.”

Why is that so bad? Because,

2) Social Security is the primary source of income for seniors.

Edward N. Wolff (Ph.D. in economics from Yale University. professor of economics at New York University, Past president of the Eastern Economics Association, past consultant for the World Bank.) and Christian Weller (Ph.D. in economics from the University of Massachusetts at Amherst.) “Retirement Income The Crucial Role of Social Security” May 24, 2005 http://www.epi.org/publications/entry/book_retirement_income/

“For the typical person approaching retirement, the value of expected future Social Security retirement benefits represents the largest single source of wealth. That finding is consistent with the well-known fact that Social Security provides more than half of all income for about two-thirds of people over age 65.”

One of the problems with the current policy is that

3) it only charges social security tax on the first $106,000 that a person earns, people that earn more than that gets the rest of their income tax free.

Bill Bischoff (tax specialist and licensed CPA for 25 years, tax columnist for Smart­Money.com) “Just What You Needed: Higher Taxes” May 26, 2011 http://www.smartmoney.com/taxes/income/just-what-you-needed-higher-taxes-1306271420886/?zone=intromessage&zone=intromessage

“Thanks to the government’s official contention that there has been little to no inflation over the past few years, the Social Security tax ceiling has been stuck at $106,800 since 2009.”

4) This leads to much of the middle class actually being taxed at a higher rate than the wealthy!

John S. Irons (PhD in economics from MIT, past Senior Economic Research and Policy Analyst and Staff Economist at Office of Management and Budget Watch, Washington, DC) Before the United States Senate Special Committee on Aging Hearing on: “Social Security: Keeping the Promise in the 21st Century” June 17, 2009 http://epi.3cdn.net/4d02ba0975848f9a30_dym6b5ofe.pdf

 “Workers making $106,800 or less pay a flat 6.2 percent for Social Security on their earnings, as do their employers. Since the most employees and employers can each owe is $6,622 (6.2 percent x $106,800), the tax rate for someone earning a million dollars per year and their employer is just 0.66 percent ($6,622/$1,000,000), roughly one tenth the rate paid by most workers. Also, since upper‐income individuals receive more of their total income in the form of non‐payroll income—such as capital gains—they see a total Social Security liability that can be much lower than average taxpayers. In 2005, those with income in the top 5 percent received 13.2 percent of their income in the form of capital gains. Those in the top 1 percent and 0.1 percent received 17.3 percent and 19.1 percent of their income from capital gains, respectively (Piketty and Saez, 2007). Since this income is not subject to payroll tax and is also subject to a lower federal income tax rate than earned income, many wealthy families owe a lower share of their overall income in taxes than many middle-class families.”

OBSERVATION 3. PLAN

Fortunately there is something that we can do to make sure that we fulfill our promise to our seniors and make our system fair at the same time. Accordingly, we offer the following PLAN to be implemented by Congress and the President:

OBSERVATION 4. SOLVENCY/ADVANTAGES

So now the good news:

1) Removing the tax ceiling will virtually eliminate Social Security shortfalls:

Josh Bivens (Ph.D. in Economics, Economist at the Economic Policy Institute.) “Removing the Social Security earnings cap virtually eliminates funding gap” February 17, 2005 http://www.epi.org/economic_snapshots/entry/webfeatures_snapshots_20050217/

“Removing the earnings cap on taxes and benefits improves the 75-year actuarial balance by 1.7% of payroll, thereby eliminating 90% of the funding deficit forecast by the SSA [Social Security Administration]. Removing the cap would completely eliminate the deficit forecast by the CBO [Congressional Budget Office] with its more plausible economic assumptions.”

2) Not only does it solve, but it won’t hurt those that get taxed more

John S. Irons (PhD in economics from MIT, past Senior Economic Research and Policy Analyst and Staff Economist at Office of Management and Budget Watch, Washington, DC) Before the United States Senate Special Committee on Aging Hearing on: “Social Security: Keeping the Promise in the 21st Century” June 17, 2009 http://epi.3cdn.net/4d02ba0975848f9a30_dym6b5ofe.pdf

“Eliminating the cap altogether—as was done for Medicare in 1993—would have a fairly modest impact on affected taxpayers, who are at the very top of the earnings distribution. The Congressional Research Service has projected that fewer than 8 percent of taxpayers would face higher taxes in any given year. A higher share (21 percent) would face higher taxes at some point by 2035, but the median increase in lifetime tax payments would be only 3 percent.”

And furthermore, 3) Most Americans support our plan

Ross Eisenbrey (J.D. Vice president of Economic Enterprise Institute, past staff attorney and legislative director in the U.S. House of Representatives, policy director of the Occupational Safety and Health Administration from 1999 until 2001.)“Americans agree on how to fix Social Security” September 16, 2009 http://www.epi.org/economic_snapshots/entry/americans_agree_on_how_to_fix_social_security/

“The most striking finding in the survey is that most Americans are willing to pay higher payroll taxes to preserve the Social Security program. When asked to respond to the statement: “It is critical that we preserve Social Security for future generations, even if it means increasing working Americans’ contributions to Social Security,” 77% of those surveyed said they agreed (see Figure). When presented with a specific way to strengthen Social Security, an even larger portion showed support. Of those surveyed, 83% said they supported lifting the Social Security tax cap of $106,800, so that high-income earners would pay the tax on all of their salary in the same way that lower-wage earners do. Because the projected shortfall in social security is much smaller and more manageable than is often presented, eliminating the cap on taxable earnings would bring in sufficient funds to close the projected Social Security shortfall over the next 75 years, solving the entire problem.”

Judge, why should we endanger the livelihood of our nation’s seniors when we can fix the system, and make it fairer at the same time? That is why we respectfully ask you to join us today in affirming the resolution.

Backup: Remove the Social Security Tax Cap

Social security is most important income source for seniors

Josh Bivens (Ph.D. in Economics, Economist at the Economic Policy Institute.) “Social Security and income” November 18, 2004 http://www.epi.org/economic_snapshots/entry/webfeatures_snapshots_11182004/

“Figure 1 presents a summary of data collected by the Social Security Administration (SSA) from 2001. The SSA found that Social Security provided more than half of the total income for almost two-thirds of households comprised exclusively of those aged 65 and older and provided at least 90% of income for a third of this group”

Social Security is the only source of income after retirement for 1/5 of seniors

Edward N. Wolff (Ph.D. in economics from Yale University. professor of economics at New York University, Past president of the Eastern Economics Association, past consultant for the World Bank.) and Christian Weller (Ph.D. in economics from the University of Massachusetts at Amherst.) “Retirement Income The Crucial Role of Social Security” May 24, 2005 http://www.epi.org/publications/entry/book_retirement_income/

“In terms of the adequacy of workers’ retirement savings, the data indicate that the retirement system outside of Social Security is a system with many holes. Despite large tax incentives from the federal government for workers to save for retirement, more than one-fifth of households nearing retirement (those between the ages of 56 and 64) had no retirement savings other than Social Security. In contrast, nearly everyone can expect to receive some benefits from Social Security.”

AT: “Only postpones SS collapse” Social security only needs intervention for baby boomer retirement

Harry C. Ballantyne (Chief Actuary of SSA since 1982) Lawrence Mishel (PhD in economics, President of the Economic Policy Institute) and Monique Morrissey (PhD in economics)“Social Security and the Federal Deficit” August 6, 2010 http://www.epi.org/publications/entry/social_security_and_the_federal_deficit/

“While it is true that Medicare spending will soar if health care cost growth is not brought under control, the same is not true of Social Security spending, which is projected to level off as a share of GDP after the Baby Boomer retirement.”

AT: “Only postpones SS collapse” Social security only needs intervention for next 75 year planning period

Harry C. Ballantyne (Chief Actuary of SSA since 1982) Lawrence Mishel (PhD in economics, President of the Economic Policy Institute) and Monique Morrissey (PhD in economics)“Social Security and the Federal Deficit” August 6, 2010 http://www.epi.org/publications/entry/social_security_and_the_federal_deficit/

“Though modest changes will be needed to put Social Security in balance over the 75-year planning period, the projected shortfall is less than 1% of gross domestic product (GDP).”

Generic SS=cool

Dean Baker (PhD in Economics, co-director of the Center for Economic and Policy Research in Washington, DC.) “SAVING SOCIAL SECURITY IN THREE STEPS” November 1998 http://www.epi.org/page/-/old/briefingpapers/ss.pdf

 “Social Security has been an enormously successful program. Over the last 60 years it has lifted tens of millions of retired and disabled workers and their families out of poverty, and it provides the core income that allows workers to enjoy a dignified retirement without burdening their children or the public welfare. In contrast to many private sector insurance and retirement programs, Social Security achieves its goals with extremely low administrative expenses and few instances of fraud and abuse.”

AT: “This is a big tax in disguise” Benefits rise too

Josh Bivens (Ph.D. in Economics, Economist at the Economic Policy Institute.) “Removing the Social Security earnings cap virtually eliminates funding gap” February 17, 2005 http://www.epi.org/economic_snapshots/entry/webfeatures_snapshots_20050217/

 “This cap affects benefits as well: calculation of Social Security benefits are based on a formula that does not take earnings over the cap into account. Since higher income during one’s working life translates into higher Social Security benefits, removing the cap on the benefit side would increase Social Security payments to high-wage earners.”

AT “massive tax increase that we can’t deal with” empirically denied

Dean Baker (PhD in Economics, co-director of the Center for Economic and Policy Research in Washington, DC.) “SAVING SOCIAL SECURITY IN THREE STEPS” November 1998 http://www.epi.org/page/-/old/briefingpapers/ss.pdf

“While this would represent a significant tax increase, it would be far from unprecedented. For example, the increase in military spending associated with the Korean War and the start of the Cold War was 8.3% of gross domestic product (Figure B). Education spending increased by 2.8% of GDP between 1946 and 1966 when the baby boomers were in school. In fact, Social Security actually increased by more as a share of GDP over the 35 years from 1960 to 1995 than it will increase over the 35 years from 1995 to 2030. In short, when it has been necessary to meet important public needs, the nation has repeatedly been willing and able to endure much larger burdens than that which Social Security will pose in the foreseeable future.”

Higher income individuals pay less on average than even the middle class

John S. Irons (PhD in economics from MIT, past Senior Economic Research and Policy Analyst and Staff Economist at Office of Management and Budget Watch, Washington, DC)“Raising cap on social security tax best way to fix shortfall” June 17, 2009 http://www.epi.org/analysis_and_opinion/entry/raising_cap_on_social_security_tax_best_way_to_fix_shortfall/

“The cap also means that higher-income individuals pay a smaller share of their income in Social Security taxes than middle-class employees. Including the employee and employer shares of Social Security and Medicare taxes, earners in the middle fifth of the income distribution pay an average effective payroll tax of about 11 percent. In contrast, the top 1 percent of earners pay just 1.5 percent on average.”

If cap isn’t raised then taxes must rise or benefits will be cut

John S. Irons (PhD in economics from MIT, past Senior Economic Research and Policy Analyst and Staff Economist at Office of Management and Budget Watch, Washington, DC)“Raising cap on social security tax best way to fix shortfall” June 17, 2009 http://www.epi.org/analysis_and_opinion/entry/raising_cap_on_social_security_tax_best_way_to_fix_shortfall/

 “Some will argue that an increase in the cap will create inefficiencies and cost jobs. Indeed, all else equal, I too would prefer to live in a world without taxes, but all else is not equal. If revenue is not generated by lifting the cap, it must be raised from other sources, or benefits must be cut.”

It solves

John S. Irons (PhD in economics from MIT, past Senior Economic Research and Policy Analyst and Staff Economist at Office of Management and Budget Watch, Washington, DC) Before the United States Senate Special Committee on Aging Hearing on: “Social Security: Keeping the Promise in the 21st Century” June 17, 2009 http://epi.3cdn.net/4d02ba0975848f9a30_dym6b5ofe.pdf

 “According to the Social Security Administration, fully eliminating the cap on taxable earnings would be sufficient to close the projected Social Security shortfall over the next 75 years. This assumes benefits for high earners remain unchanged. If, instead, newly‐taxed earnings above the taxable maximum were credited toward benefits, eliminating the cap would reduce the shortfall by 1.8 percent of taxable payroll, slightly less than the long‐term shortfall projected by the Social Security trustees.”

About the Author: Daniel Gaskell is the lead editor for COG 2011, a nationally-qualified debater and speaker, and developer of the Factsmith research software. You can find his weekly debate blog, Loose Nukes, at loosenukes.cogdebate.com.

Reading note: all added material is in italic brackets – non-italicized brackets were in the original text. No ellipses (…) have been added.

1AC: ICE Detention Procedures

By Daniel Gaskell

If you suddenly disappeared off the face of the planet tomorrow, what would happen to your children?

That’s probably not a question you really want to think about, but it’s one that’s very real for illegal immigrants. Following a raid on their workplace, they may find themselves suddenly separated from their children, with no way of communicating with them or arranging for their care. Federal authorities are often uncooperative, interested more in crossing off another arrest than keeping families together. The damage to the community – and to the children – can be devastating.

We believe that there is a better way – one that doesn’t require such violent and indefinite separation. My partner and I stand resolved: that the United States Federal Government should significantly reform its criminal justice system.

Part 1: Definitions

Before we launch into our proposed change, I’d like to define some terms that will be used in this round, to make sure we’re all talking about the same thing:

Significant: “having or likely to have influence or effect” (Merriam-Webster Online Dictionary, 2011, http://www.merriam-webster.com/dictionary/significant)

Criminal Justice System: “Criminal justice system refers to the collective institutions through which an accused offender passes until the accusations have been disposed of or the assessed punishment concluded. The criminal justice system consists of three main parts: (1) law enforcement (police, sheriffs, marshals); (2) adjudication (courts which include judges, prosecutors, defense lawyers); and (3) corrections (prison officials, probation officers, and parole officers).” (USLegal Online Law Dictionary, 2011, http://definitions.uslegal.com/c/criminal-justice-system/)

Immigration and Customs Enforcement, or ICE: “U.S. Immigration and Customs Enforcement (ICE), the largest investigative agency in the Department of Homeland Security, enforces federal immigration laws as part of its homeland security mission.” (U.S. Immigration and Customs Enforcement, “Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act”, http://www.ice.gov/287g/)

Part 2: Harms – the problem

The ICE arrests thousands of illegal immigrants every year in raids on homes and workplaces, most of whom are eventually deported. Lost in all the rhetoric of the immigration debate, however, is an important fact: most of them also have children. What happens to those children when their parents are arrested… isn’t good.

1. Children Abandoned – parents are detained, leaving no one to take care of their children

Prof. David B. Thronson (JD from Harvard, Associate Professor of Law at the University of Nevada), July 6, 2008, Wake Forest Law Review, “Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families”, Vol. 43, accessed June 24, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1155224 (page 405)

“The workplace raids presented particular difficulties for parents who were detained and not able to go home to their children. Discussing the New Bedford raid, the First Circuit noted “that ICE gave social welfare agencies insufficient notice of the raid, that caseworkers were denied access to detainees until after the first group had been transferred, and . . . [a]s a result, a substantial number of the detainees’ minor children were left for varying periods of time without adult supervision.” Persons arrested who contested removability “were detained for significant amounts of time in locations far from their homes and families.””

Randy Capps and Ajay Chaudry of the Urban Institute report one case in which three single mothers were separated from their children for up to six months.

As any parent can imagine, the consequences for children go far beyond mere physical care – being suddenly and indefinitely separated from their parents causes…

2. Severe Emotional Trauma

Prof. David B. Thronson (JD from Harvard, Associate Professor of Law at the University of Nevada), July 6, 2008, Wake Forest Law Review, “Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families”, Vol. 43, accessed June 24, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1155224 (page 405)

“”[M]any children face[] traumatic circumstances and insecure care . . . in the period after the raids.” According to “[c]hild psychology experts . . . children suffer most from the disruption of armed agents coming into their homes and taking away their parents – and sometimes themselves. Children can experience stress, depression and anxiety disorders ….” “The most destabilizing impact on the children of arrestees following worksite enforcement actions came from the separation and fragmentation of families.” For children, “emotional trauma . . . followed separation from one or both parents.” For young children who do not understand the concept of immigration law, “sudden separation was considered personal abandonment.“”

You might be thinking at this point: well, that’s bad, but they’re criminals, after all. There isn’t really much we can do about that. Actually, there is:

Part 3: Inherency – what the ICE is doing

In 2007, in response to the problems outlined in the previous section, ICE implemented a set of “humanitarian guidelines” requiring agents to identify single parents, primary caregivers, and other people with “humanitarian concerns”. Where possible, the parents are then released to take care of their children while they await processing by the immigration courts, instead of being held in detention.

These guidelines are a good start, but they’re not quite a complete solution, as we see in three points:

1. Guidelines Work – in cases where the guidelines are applied, children are protected

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 15)

“The Postville and Van Nuys raids occurred in 2008, after the guidelines were developed, and were large enough for them to apply. During these raids, ICE followed the guidelines by releasing primary or sole caregivers of minor children and those with acute medical conditions quickly- usually the same day-and often directly from the raid site. Consequently, there were no accounts of children left unattended or neglected for a significant amount of time in either Van Nuys or Postville.”

2. Limited Application – the guidelines only apply to workplace sweeps of more than 25 people

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 20)

“Besides the arrests at workplaces, immigration enforcement activities can take the form of FOT sweeps conducted by ICE agents and 287(g) arrests made by local police and sheriffs. Our current study expands the scope of the research described in our 2007 report Paying the Price to include these activities in addition to worksite raids. Because these arrests are most often the result of investigations of individuals rather than large employers, ICE’s humanitarian guidelines around detention do not apply. Moreover, the scale of the arrests in any given operation is generally too small-less than 150 arrests at the time (less than 25 now)-for the guidelines to apply. The fact that humanitarian guidelines do not apply, along with the relative invisibility of these operations in comparison to workplace raids, makes parents and children particularly vulnerable to long separations. Nonetheless, there were instances in Miami when ICE released parents quickly for humanitarian reasons. There were no such releases- and detention periods tended to be long-following arrests by the local police in Rogers-Springdale, Arkansas.”

3. Must Apply Everywhere – separations will continue to be a “significant problem” until the guidelines are expanded to cover all cases

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 76)

“The extension of these humanitarian guidelines to cover raids in which 25 or more workers are arrested and the absence of large-scale worksite raids in the past year are positive developments. However, until these guidelines cover the full range of enforcement activities by ICE and its partner agencies, which result in a larger number of arrests, most children will remain unprotected and family separations will continue to be a significant problem.”

Part 4: Plan

We have one simple mandate:

Apply Guidelines Everywhere – The ICE’s humanitarian guidelines shall be made mandatory for all arrests, not just workplace busts of 25 people or more. This includes arrests made in the home, and arrests by local law enforcement working under the federal 286(g) program.

Enforcement shall be through the ICE, the Department of Justice, and any other necessary federal agency. Funding shall be through the ordinary budgetary processes of the ICE and the Department of Justice.

Since we obviously don’t have time to present a complete bill in 8 minutes, we do reserve the right to clarify the details of this plan in later speeches, as needed.

Conclusion

Illegal immigrants may be criminals, but their children have done nothing wrong, and no child should be forcibly separated from their parents without cause. The ICE’s current humanitarian guidelines have proven that it is safe and practical to keep families together during the immigration proceedings. Since the trauma of separation can easily be avoided, it is inexcusable to continue current policies and let thousands of children fall by the wayside. We urge you to vote Affirmative. It’s for the kids. :-)

Backup: ICE Detention

Author Comments

This particular proposed reform has relatively little literature. The main study is the 2010 Urban Institute report, which provides advocacy and is quoted extensively in the backup below. You’ll get a lot more if you expand the case to cover other topics related to children of incarcerated parents, but it’s a big and complicated topic without a lot of easy “do this” advocacy, so I didn’t get into it much.

This general topic has a lot of room for tweaking the case. Urban’s full recommendations are a bit more complicated than just the 25-rule; for example, they recommend ending mass workplace raids altogether, in favor of more passive enforcement and prevention. You could also expand the case to cover other criminal arrests.

Significance is the biggest issue you’ll hit immediately. I recommend a three-step approach: 1) read a bunch of stories (Harms, below); 2) point out that thousands of parents are arrested every year (Significance, below); and 3) cross-apply Inherency 3 in the 1AC to show that the majority of their children are still unprotected. (That’s thousands, yo.)

Inherency

Humanitarian policy isn’t mandatory for raids under 150 people – original guideline

Immigration and Customs Enforcement, 2007, “Guidelines for Identifying Humanitarian Concerns among Administrative Arrestees When Conducting Worksite Enforcement Operations”, accessed June 24, 2011, http://www.nilc.org/immsemplymnt/wkplce_enfrcmnt/ice-hum-guidelines.pdf (page 1)

Prior to conducting a worksite enforcement operation targeting the arrest of more than 150 persons, ICE should develop a comprehensive plan to identify, at the earliest possible point, any individuals arrested on administrative charges who may be sole care givers or who have other humanitarian concerns, including those with serious medical conditions that require special attention, pregnant women, nursing mothers, parents who are the sole caretakers of minor children or disabled or seriously ill relatives, and parents who are needed to support their spouses in caring for sick or special needs children or relatives. Where practical, at the direction of the Assistant Secretary, ICE will continue to implement these guidelines in all smaller worksite enforcement operations.

Now applies to 25 or more arrests – 2009 update

David Whitlock (attorney at Littler Mendelson, a law firm in California), May 4, 2009, Global Immigration Council, “Homeland Security Issues Fact Sheet on Worksite Enforcement Strategy”, accessed June 24, 2011, http://www.globalimmigrationcounsel.com/2009/05/articles/us-immigration/homeland-security-issues-fact-sheet-on-worksite-enforcement-strategy/

The existing humanitarian guidelines governing ICE’s behavior in raids affecting 150 or more employees will now apply to worksite enforcement efforts impacting 25 or more illegal workers.

Harms

Examples: Single mothers held for months

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 22)

None of the parents with whom we spoke [who were arrested in Rogers-Springdale, Arkansas] had been granted early release for humanitarian reasons. Respondents from Arkansas on average had much longer detention periods than the parents we interviewed in other sites. Notably, three single mothers in Arkansas were held in detention between 12 days and six months.

Example: 12-yr-old sleepwalking, waking up screaming

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 45)

In another case, a Postville mother who was arrested and released described how her 12-year-old son had been affected. Right after the raid, her children were afraid to answer the door and became clingy. Her son appeared to be no more traumatized by the raid than his siblings. However, nine months after the raid, she was considering taking him to a counselor because his behavior had become exceedingly worrisome. “He’s, like, traumatized because sometimes he’s sleeping . . . he gets up screaming at his uncle [who was arrested], someone he loved a lot and he gets up screaming, crying . . . And if you grab him, he walks and leaves [the house]. Then, when you talk to him, he wakes up from his sleep.” He repeated similar sleepwalking episodes almost every night and sometimes woke up in other people’s rooms.

Examples: Children traumatized and depressed from separation

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 44)

Children separated from a parent or caregiver struggled during these periods of great uncertainty for the family, especially since they did not know if or when their parent would return. For instance, a 2-year-old boy in New Bedford was apart from his mother for two weeks. He did not want to engage with family members who were caring for him. “He had a fever,” said the boy’s aunt who took care of him. “[He was] sad, very sad. He couldn’t eat. And when the night came . . . even though we’re family, he would just watch us . . . He didn’t want to play.” In Arkansas, a mother was in detention for three days, long enough to unnerve and disorient her four daughters (ages 16, 13, 8, and 2). The girls stayed with a family friend who watched after them while the mother was in jail. “While they were in the house,” the friend said, “they did not want to eat. During the days they spent there, I had to beg them to eat. They were very depressed. They couldn’t sleep because I would wake up at dawn and the girls were crying.” Even after their mother was released, the family feared going back to their apartment because they were afraid the entire family would be arrested. The youngest became so depressed that she only wanted to sleep. Her mother thought about taking her daughter to a specialist to see if anything could be done to help the girl.

Examples: Children become afraid of the police

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 46)

An 8-year-old boy in Van Nuys who witnessed his father’s arrest by ICE agents-in the family home, at gunpoint-no longer trusted the police. According to his father, “They see the police and they run home . . . Sometimes I go to visit them and, well, I’m there and they come in running and shutting the door because they say that the police is coming.” A 5-year-old boy whose mother was arrested at the Swift plant in Grand Island also feared both immigration and the police. “Like it or not, they take notice of all of this- [everything we say about] immigration, immigration, immigration. It’s like they also think that they are bad in the eyes of the police. [My oldest son] is even afraid of the police . . . When he sees a police officer, he goes away and hides.”

Increased aggression

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 48)

Anger, aggression, or rebelliousness were reported for onethird of all children in the short-term sample, though the way parents described the behavior differed according to the child’s age. Parents of younger children described how their children began lashing out angrily, while parents of older children said their children had become disobedient or less respectful. Angry behavior toward others, for some children, also became a way to voice their frustrations or redirect their outrage after their parent’s arrest.

Hurt development

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 48)

In addition to the behavioral changes described above, some parents of young children (under 6 years old) voiced concern about related changes in their children’s development and speech patterns. For example, a 3-year-old who witnessed his mother’s arrest in the family’s home underwent a dramatic reversal in developmental milestones.

Speech problems

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 49)

A few parents also noted increased difficulty in speaking in their children. For example, a 5-year-old girl and a 4-year-old boy whose fathers were arrested at Agriprocessors and detained for months both developed speech problems.

Communicating with family from detention is difficult

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 24)

Most of the parents who were held for more than one day reported difficulties communicating with their children during detention. One man who was detained for six months said he was not permitted to make phone calls from the first detention center where he was held for a week. A mother from Arkansas had a similar experience. During the first two months, she was only allowed to write letters. After that, she could call once or twice a week but had to call collect, and it was expensive. Other respondents, including a mother from Grand Island, registered the same complaint: “The calls were very expensive. Ten dollars for five minutes to talk about everything you could in five minutes. So, I was always depressed [when I hung up].”

Three quarters of illegal immigrant’s children are U.S. citizens

D’Vera Cohn (consultant and freelance writer for the Pew Hispanic Center, Brookings Institution and Population Reference Bureau) and Jeffrey S. Passel (PhD in statistics, senior demographer at the Pew Research Center), April 14, 2009, Pew Hispanic Center, “A Portrait of Unauthorized Immigrants in the United States”, accessed June 24, 2011, http://pewhispanic.org/files/reports/107.pdf (page 2)

In addition, a growing share of the children of unauthorized immigrant parents-73%-were born in this country and are U.S. citizens.

Significance

Over 100,000 parents (of citizens alone) deported since 1998

U.S. Department of Homeland Security, January 2009, “Removals Involving Illegal Alien Parents of United States Citizen Children”, accessed June 24, 2011, http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_09-15_Jan09.pdf (page 8)

According to DACS data, 108,434 alien parents of U.S. citizen children were removed between FYs 1998 and 2007. More than a third of the parents-40,260 or 37.1%-were previous offenders who returned to the United States after their first removal and subsequently were removed on other occasions during the 10-year period. As a result, the total number of parent removals was 180,466.

13,000 children’s parents deported in two years

Prof. David B. Thronson (JD from Harvard, Associate Professor of Law at the University of Nevada), July 6, 2008, Wake Forest Law Review, “Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families”, Vol. 43, accessed June 24, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1155224 (page 404-405)

ICE does not collect data on the number of arrestees who have children. However, statistical estimates, confirmed in several case studies, predict that the number of children affected by the arrest of parents in workplace raids “would be equal to about half the number of adults arrested.” By one account, “at least 13,000 American children have seen one or both parents deported in the past two years alter round-ups in factories and neighborhoods.” When extended families are considered, the count of families that have been separated increases.

Underestimate – likely many more

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 1)

Hundreds of thousands of children have experienced the arrests of their parents in recent years; a report by the U.S. Department of Homeland Security (DHS) estimated that over 100,000 parents with U.S. citizen children were deported over the past 10 years-most likely a significant underestimate since parents often do not divulge the presence of children when they are arrested.

ICE deportation budget: $2.5 billion

Los Angeles Times, October 6, 2009, “Alternative housing to be used to hold some immigrant detainees”, accessed June 24, 2011, http://latimesblogs.latimes.com/lanow/2009/10/alternative-housing-to-be-used-for-some-immigrant-detainees.html

The proposed changes are expected to reduce costs for Immigration and Customs Enforcement, which has a nearly $2.5-billion annual budget for detention and deportation.

Solvency

Advocacy: Apply guidelines to all arrests

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page 76)

[Recommendation:] 3. Law enforcement should allow alternatives to detention for arrested parents who represent neither a danger to the community nor a flight risk in all types of enforcement operations, as long as mandatory detention rules do not apply to these parents. The humanitarian release rules that applied to the worksite raids we studied in Postville and Van Nuys should apply to arrests by FOTs and referrals from state and local law enforcement agencies. The humanitarian guidelines ICE issued in November 2007 regarding the quick release of parents in large-scale worksite raids made a significant difference for many families and children in Van Nuys and Postville.

Shorter separation = less trauma

Randy Capps (PhD in sociology, senior research associate at Urban), Ajay Chaudry (PhD in public policy from Harvard, senior fellow at Urban), and others, February 2010, Urban Institute, “Facing Our Future: Children in the Aftermath of Immigration Enforcement”, accessed June 24, 2011, http://www.urban.org/uploadedpdf/412020_FacingOurFuture_final.pdf (page ix)

Children who were separated from detained parents were more likely to experience behavioral changes in both the short term and the long term. In the short term, about three out of four of the children separated from parents experienced changes in eating habits, while these changes were experienced by only half of the children who were not separated from their parents. About two-thirds of the children separated from their parents began crying, and about half of them exhibited fear. Of the children who were not separated from parents, about half cried more than before and about a third felt afraid. In the long term, children who did not see their parents for a month or more exhibited more frequent changes in sleeping habits, anger, and withdrawal compared with children who saw their parents in the first month after arrest.

Disadvantage Responses

A/T “hard on law enforcement”: Family rights are more important than convenience

Prof. David B. Thronson (JD from Harvard, Associate Professor of Law at the University of Nevada), July 6, 2008, Wake Forest Law Review, “Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families”, Vol. 43, accessed June 24, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1155224 (page 416-417)

Family Rights Do Not Give Way to Logistical Difficulties

[later, in this section:]

Working to keep immigrant families together within the United States likewise can present new challenges for child welfare advocates. In any determination of child custody issues, vigilance against discrimination on the basis of immigration status is crucial, but “[a] strict prohibition on raising immigration status issues in child custody matters would be difficult to maintain because immigration status does have an impact on the experiences of many immigrants and their families.” Rather than sweeping issues related to immigration under the table, it is important that when such considerations are at play they are “acknowledged, understood, and, when appropriate, affirmatively addressed in legal representation.”

Appellate level vindication of family rights will not counteract perceptions that immigrants are disadvantaged in child custody matters until frontline practices align with appellate articulations of the rights of immigrant children and parents. This alignment will require social service agencies and family courts to commit resources and question existing routines, but the preservation of fundamental family rights requires no less.

[Another response to this argument: They already do it for workplace raids of 25 people; how much harder can it be for 25 people arrested in other manners?]

A/T “fear of separation discourages illegal immigration”: Morally questionable motive

Prof. David B. Thronson (JD from Harvard, Associate Professor of Law at the University of Nevada), July 6, 2008, Wake Forest Law Review, “Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families”, Vol. 43, accessed June 24, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1155224 (page 417)

At the same time, in an environment in which the enforcement of immigration laws is highly selective, the decision to devote scarce enforcement resources in a manner that profoundly harms children is questionable at best. Practices that create crisis and discord in families place the enforcement of immigration laws in direct opposition to widespread policies and significant government resources that are devoted to maintaining families and protecting children. Exploiting the fear of family separation should not be the lynchpin of modern immigration enforcement.

Topicality

ICE is a federal law enforcement agency

U.S. Immigration and Customs Enforcement, static information page, “Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act”, accessed June 24, 2011, http://www.ice.gov/287g/

U.S. Immigration and Customs Enforcement (ICE), the largest investigative agency in the Department of Homeland Security, enforces federal immigration laws as part of its homeland security mission. ICE works closely with federal, state and local law enforcement partners in this mission.

Detention is part of the federal criminal justice system

Harvard National Security Research Group, January 2009, “An Analysis Of Legal Options For Detention And Trial Of Suspected Terrorists”, accessed June 24, 2011, http://www.law.harvard.edu/students/orgs/nsrc/NSRG – Detention Project – Final.pdf (page 2)

This section begins with a review of the currently authorized procedures for detention in the federal criminal justice system and then discusses a proposed administrative detention model that might be adopted for use in cases involving terrorist suspects.

Local arrests: Made under the authority of 287(g), a federal program

U.S. Immigration and Customs Enforcement, static information page, “Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act”, accessed June 24, 2011, http://www.ice.gov/287g/

The 287(g) program, one of ICE’s top partnership initiatives, allows a state and local law enforcement entity to enter into a partnership with ICE, under a joint Memorandum of Agreement (MOA). The state or local entity receives delegated authority for immigration enforcement within their jurisdictions.

• Release date: Mid-august.
• Pricing: $20-25, depending on how large the final product is.
• Size: 350-500 pages for each edition, including the update.
• Update: A free midseason update will come out in January.
• Printed copies: Will again be available on Lulu.

If you’d like to be notified when COG goes up for sale, you can submit your email on the website. We’ll send you a message when it’s ready!

Case of the Week

Case of the Week will be returning – each week leading up to release, we’ll be posting a free throw-together 1AC and backup. You can browse through some of last year’s cases to get an idea of what this will be like.

- Daniel Gaskell, lead editor