Death Penalty Case Neg

Death Penalty Case Neg
T-Enact
1NC – T-Enact
Interpretation---enact means legislative

US Legal No Date, Legal information company, "Enacted Law and Legal Definition",
https://definitions.uslegal.com/e/enacted/
Enact or enacted means to make into law by authoritative act. For example, the statute was enacted in the
year 1945. It primarily means to perform the legislative act with reference to a bill which gives it the
validity of law . In short, a bill is enacted when it becomes a law that is when the Governor signs it and
makes it effective.
Violation---courts don’t enact law, they interpret it

Robert Alt 12, former visiting fellow, Heritage Foundation, 1/20/12, "What Is The Proper Role of the
Courts?", The Heritage Foundation, https://www.heritage.org/courts/report/what-the-proper-role-the-
courts
Accordingly, the
Founders vested the legislative power (the power to make the laws ) in Congress , the
executive power (the power to enforce the laws) in the President, and the judicial power (the power to
interpret the laws and decide concrete factual cases) with the courts . But even these powers were not unfettered.
Federal courts, for example, can hear only “cases or controversies”: they cannot issue advisory opinions .
The courts cannot expound on a law of their choosing or at the request of even the President himself, but
must wait for a genuine case between actual aggrieved parties to be properly presented to the court.
Vote Neg:
Limits---triples the caselist---every aff now has a courts congress and executive
version
Ground---kills generics like federalism, politics, actor CPs
Precision---legal education is the most portable debate skill
2NC – T-Enact – Interps
Enact means :
-to establish by law, which means legislative action
West 08, West's Encyclopedia of American Law, edition 2, 2008, “Enact”, The Free Dictionary by
Farlax, Legal Dictionary, https://legal-dictionary.thefreedictionary.com/enact
To establish by law ; to perform or effect; to decree.
Enact, sometimes used synonymously with adopt, is generally applied to legislative rather than executive action .
-passing a bill
Merriam-Webster No Date, "enact", https://www.merriam-webster.com/dictionary/enact
1: to establish by legal and authoritative act specifically : to make into law
enact a bill
-act or statute
Dictionary.com No Date, "enact", https://www.dictionary.com/browse/enact
to make into an act or statute:
Congress has enacted a new tax law.

2NC – T-Enact – Precision
Precision is good---using proper terminology matters---it shapes our understanding

of the law
Bradley Shannon 02, Professor of Law, Florida Coastal School of Law, “Action Is an Action Is an
Action Is an Action”, Washington Law Review, January 2002, 77 Wash. L. Rev. 65
The first answer to this question is, why
should we not care? If proper terminology (of whatever type) is readily
available and comprehendible, why should one not want to use it? Does one really need a reason for not
misusing any word, technical or otherwise? In other words, though many misuses of Rules terminology might
not seem to cause serious problems, surely that is not an argument in favor of a disregard of proper Rules
terminology, particularly where the cost of using proper terminology is negligible .79
The second answer to the question why we should care about the use of proper Rules terminology goes to the
cost of using improper
terminology even in seemingly trivial contexts. Understanding legal concepts is difficult enough
without the confusion created when an inappropriate term is used to represent those concepts. And this
is true regardless of how minor the misuse. In some sense, every misuse of legal language impedes the
understanding-and , consequently, the progress—of the law.
2NC – T-Enact – AT: Procedural Rules
Courts can’t enact rules of procedure that affect substantive rights

Robert Francis Peckham 90, United States District Judge of the United States District Court for the
Northern District of California, "Memorandum To Joseph R. Biden, Jr., Chairman, Re: The Civil Justice
Reform Act", https://www.fjc.gov/sites/default/files/2017/BB4-39-%20Memo%20Peckham%20to
%20Biden%205-23-90.pdf
B. Rulemaking Power Delegated to the Courts by the Rules Enabling Act
The Supreme court's, authority to enact rules of procedure is far more limited than Congress's power -- the Court has only that authority delegated
to it by Congress in the Rules Enabling Act of 1934. The
portion of the R ules E nabling A ct delegating authority to the
Supreme Court -- and limiting that authority -- reads as follows:
"(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United
States district courts…and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any substantive
right….” (28 U.S.C. Sec. 2072.)
There is general agreement among commentators that Congress empowered the Court in this provision
only to propose rules of procedure that have no substantive effect.
Under the present system, judicial rulemaking authority is triggered when the 3udicial conference of the United States transmits a draft rule to the
Supreme Court. If it chooses, the Supreme Court can then transmit the proposed rule to Congress I but must do so between the time Congress
begins a regular session and May 1. Congress then has until December 1 of that year to disapprove, modify, or further delay the effective date of
the proposed rule. If Congress takes no action, the proposed rule becomes effective on December 1.
Rules of court that are both substantive and procedural are beyond the limits of the Supreme Court's
delegated rulemaking authority. If the Supreme Court were to propose a rule that impacted upon a
substantive concern, that proposal would run afoul of the Rules Enabling Act's prohibition against rules
that “abridge, enlarge or modify any substantive right.”
Since Congress's power to enact rules of procedure is limited only by the Constitution, and not the Rules Enabling Act, Congress
may pass
procedural rules that advance· substantive goals. Such rules define the area of court rulemaking that is
allowed to Congress, but prohibited to the Supreme Court under current law.
Congress has been careful to protect its exclusive rulemaking authority. In a 1985 report, the House Judiciary Committee commented on
legislation eventually enacted in 19B8 that amended the Rules Enabling Act. The 1985 House Report describes the exclusive rulemaking
authority retained by Congress as follows;
“[The Rules Enabling Act] is intended to allocate to Congress, as opposed to the Supreme Court
exercising delegated legislative power , lawmaking choices that necessarily and obviously require
consideration of policies extrinsic to the business of the courts ..... 11 (H.R. Rep. No. 422, 99th Cong., 1st Sess., 22
(1985).) Importantly, the report also refers to Conqress's exclusive power to enact procedural rules' that "affect its constituencies) \ in their out-of-
court affairs.” (Id.)
Courts adopt rules, Congress enacts laws

George Coppolo 08, Chief Attorney, Connecticut General Assembly, 12/30/08, "COURT RULES IN
OTHER STATES-LEGISLATIVE APPROVAL", OLR Research Report,
https://www.cga.ct.gov/2008/rpt/2008-R-0430.htm
The Wyoming Constitution gives the Supreme Court general superintending control over all inferior courts, under such rules and regulations as
may be prescribed by law (Wyo. Con. Art. 5, § 2). This authority gives the Supreme Court the right to prescribe rules of practice and procedure in
the courts (White v. Fisher, 689 P.2d 102 (1984), Squillace v. Kelly, 990 P.2d 497 (1999)). This right is limited only by reasonableness and
conformity to constitutional and legislative enactments that deal with substantive rights or a court's jurisdiction (Peterson v. State, 594 P.2d 978
(1979)). The Supreme Court has also ruled that “matters dealing with procedure, particularly in the minor courts, are entirely within” its province
(Peterson). Thus it appears that in Wyoming, the
Supreme Court has ultimate authority to adopt procedural rules and
the legislature has ultimate authority to enact laws that deal with “substantive rights.”
2NC – T-Enact – AT: Courts Make Law
Courts don’t enact policy---they can’t be the lead player

Amanda Hollis-Brusky 15, assistant professor of politics at Pomona College, teaches courses in
American politics, constitutional law, and legal institutions, "The Constrained Court", Democracy
Journal, Summer 2015, No. 37, https://democracyjournal.org/magazine/37/the-constrained-court/
According to the “constrained court” view, there are four important institutional and political factors that limit the Supreme Court’s ability to
unlike Congress , courts are not self-starting institutions,
directly and powerfully influence social policy. The first is that
so they can rule only on cases and questions presented to them. Second, the issue must first be translated
into a statutory or constitutional-rights framework for the courts even to have the authority to rule on it,
which is actually a very limiting requirement (the Court could not, for example, address issues of sexual harassment and
workplace discrimination until these issues were successfully read into the language of the Civil Rights Act). Third, even if judges do
have the authority to rule on an issue, they can only do so in a piecemeal , case-by-case fashion. And finally,
their decisions are not self-executing—courts must depend on other entities or branches of government
to implement their rulings.
And even in the rare case that all of these constraints are overcome, courts still cannot enact a policy
agenda without the help of what Charles Epp referred to in 1998 as the “support structure” for legal change—i.e.,
the lawyers, legal institutions, funding sources, and legal strategies that enable judges and justices to
make and support their rulings. The essential point is that while the Supreme Court’s rulings can and do have real
consequences for real people, the Court can never be the lone or even the leading player in these
complex legal-political dramas. For better or for worse, it is only ever capable of playing a supporting role.
Reform CP
1NC – Reform CP
The United States federal government should rule that death penalty governments
must
-create and fully-fund the use of specialized, public, state-controlled prosecutors,
defenders, and judges for capital punishment cases
-create committees in charge of seeking death sentences
-create an objective standard for race-conscious evaluation during jury selection
that includes a qualified observer,
-define non-racial experiences, including negative impressions of the criminal justice
system, past arrests, and criminal convictions, as illegitimate grounds for striking
jurors
-instruct jurors they have a right to participate free from racial exclusion
-ban lethal injection and require states to use firing squads as a method for
execution
Reforming prosecutor discretion solves geographic and racial disparities

Andrew Fulkerson 19, professor of criminal justice for the Department of Criminal Justice and
Sociology at Southeast Missouri State University, former Judge of the Greene County, Arkansas, J.D.
from the University of Arkansas, Ph.D. from the University of Portsmouth, U.K., 4/15/19, "Routledge
Handbook on Capital Punishment", Chapter 7: Why We Need The Death Penalty And What We Need to
Do to Keep It, 1st Edition, https://www.routledge.com/Routledge-Handbook-on-Capital-Punishment-1st-
Edition/Bohm-Lee/p/book/9780367199371
The geographical disparity in capital trials and sentencing is unquestionable. This raises the issue of
unconstitutional arbitrariness, as was found in Furman v. Georgia (1972), where Justice White observed, “there is no meaningful basis for
distinguishing the few cases in which it is imposed from the many cases in which it is not” (p. 313). One could make a strong argument that a
system in which cases with similar facts are treated in a dissimilar manner simply because of location is no better than a lottery system for
deciding which defendant faces death and which does not. The result is nothing if not arbitrary.
A solution is moving to a state-controlled , or state- influenced , and state- financed system of capital
punishment. Reform could be accomplished by either of the previously discussed systems: (1) the
committee system for decisions to seek death with other prosecutorial power and functions reserved in
the local prosecutor, which would require state fi nancing in order to be complete, or (2) complete transfer
to state control and operation, including the use of specialized state prosecutor ial and defense teams
and judges . The advantage of a state-operated system is the capital litigation expertise that would be
present for both prosecution and defense. The least politically difficult system is the committee for
determining whether to seek death. This process leaves enough local control to minimize resistance
from local prosecutors to loss of influence. It also retains the benefit that comes from knowledge of local
prosecutors of social norms that may sway juries . Additional state support for capital litigation resources should also be
available as needed and requested by local prosecutors. State fi nancing is also a key component to reducing the geographical disparity that is
present with the current system.
Either system would certainly be effective in reducing the geographical disparity that now exists in
capital punishment. It may also reduce the racial disparity that will be discussed later in the chapter It is posited that some
prosecutors may welcome passing the responsibility for capital decisions to another entity (Horowitz, 1997). This may be true for some
prosecutors, but the political reality is that many would probably resist such a transfer of power. Opposition
or no, a solution must
be found in order to address this obvious disparate treatment of similarly situated cases that exists for no
reason other than the related variables of location and the discretion of the local prosecuting attorney.
Race-conscious jury reform is effective

Anna Offit 20, Assistant Professor of Law, SMU Dedman School of Law, Last revised date 5/15/20,
"Race-Conscious Jury Selection", Ohio State Law Journal, Forthcoming,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3587892
At last, building on advances already reflected in the adoption of GR37, it is instructive to consider novel
reforms that will propel the Batson framework forward. The previously described link between prosecutors’ perceptions of the Batson
challenge and their race-conscious effort to empanel inclusive juries suggests several reforms that might
strengthen and enhance the current framework’s deterrent impact and potential.
First, building on GR37, courts should emphasize that various non-racial experiences and characteristics
nevertheless function as proxies of race and may constitute illegitimate grounds for striking and
dismissing potential jurors. One example, previously mentioned, is past contact with—and negative
impressions—of the criminal legal system . Though some lawyers would contend that these experiences inhibit a jurors’ ability
to assess evidence fairly, a growing scholarly consensus asserts that making this a legitimate basis for
disqualifying or striking jurors will result in discriminatory empanelment. By highlighting this link, courts can push
prosecutors to integrate these experiences into their decision-making and strategy during jury selection. This is a reform that should extend to
both cause and peremptory challenges of jurors and prohibit automatic excusal. Further, it should cover, among other things,
prospective jurors with past arrests 220 or criminal convictions 221 in the absence of meaningful judge-led voir dire on
the subject. Prosecutors should know that striking for certain ostensibly “race-neutral” reasons might
nevertheless constitute race-based exclusion.
Second, the prevalence of race-conscious jury selection suggests that an objective standard should govern
judges’ assessments of the motivations behind for cause excusal and peremptory strikes. The adoption of
such a standard would relieve judge’s of having to impute racial animus to lawyers based on their own
personal understanding of what constitute illegitimate grounds for striking jurors. An objective
standard is likely to de-personalize the adjudication process and encourage judges, who otherwise might feel uneasy
about using their own standard , to identify Batson violations that might otherwise go unacknowledged.
Further, this would force lawyers to orient their race-consciousness not toward their own or judges’
idiosyncratic understandings of antidiscrimination but an objective legal standard.
Third, and finally, my empirical findings reinforce the importance of instruct ing prospective jurors that they
have a constitutional right to participate as jurors free from racial—or other forms—of exclusion . In addition
to reiterating Batson’s normative vision of the value of representative juries for defendants and lay citizens alike, an instruction would
put prosecutors on notice that their questioning strategies and stated reasons for challenges might face
scrutiny an informed public, as well as their adversaries or presiding judge. To the extent that prosecutorial race-
consciousness shapes decision-making and strategy during voir dire, creating
moreinformed jurors expands the capacity of
ordinary people to play an active part in safeguarding the norms of fairness and justice that should
animate our criminal legal system.
Firing squads are a humane execution method

Another discussed solution is a return to the firing squad as being better than the other available
methods if performed properly (Denno, 2016). The fi ring squad has been observed by the U.S. Supreme Court to not be cruel and
unusual punishment ( Wilkerson v. Utah, 1878). However, it has been pointed out that the court had not yet made the Eighth Amendment
applicable to the states at the time of Wilkerson, making that part of the decision dicta (Denno, 2016). The court, in Glossip (2015), pointed out
that “the petitioners failed to identify a known and available alternative method of execution that entails a lesser risk of pain” (p. 2731). Justice
Sotomayor’s dissent in Glossip opined that a prisoner may prefer the fi ring squad to lethal injection. Chief Judge Alex Kozinski of the Ninth
Circuit Court of appeals offered the following argument in favor of the fi ring squad as a method of execution:
The fi ring squad strikes me as the most promising. Eight

or ten large caliber bullets fired at close range can inflict
massive damage, causing instant death every time . There are plenty of people employed by the state
who can pull the trigger and have the training to aim true. The weapons and ammunition are bought by
the state in massive quantities for law enforcement purposes, so it would be impossible to interdict the
supply. And nobody can argue that the weapons are put to a purpose for which they are not intended: fi rearms have no purpose other than
destroying their targets. ( Wood v. Ryan , 2014, p. 1103, dissenting opinion)
The firing squad has a long history as a method of execution in the United States. There are currently two
states (Oklahoma and Utah) that employ this method as an alternative to lethal injection . Utah has the most
extensive recent history with the method, having completed three executions by fi ring squad between 1976 and 2010 (Denno, 2016). The
best evidence is that the firing squad causes a death that is “swift and pain free” (Denno, 2016, p. 792).
It is clear that states

are increasingly unable to carry out executions by use of lethal injection, and
consideration of other means is essential if death sentences are to be performed. The problem of litigation
and drug availability that was present in lethal injection executions at the time of Baze (2008) has only become worse
(Denno, 2016). In order for the death penalty to remain viable, states must abandon lethal injection and
move to another method that is known, available, and less likely to cause unnecessary pain . However, states
must act with caution and deliberation in collecting and acting on relevant information in the process of considering new methods.
2NC – Solvency – Discretion
Eliminating prosecutorial discretion solves geographic and racial disparities in

death sentencing---takes control away from local prosecutors with biases that
influence their decision to seek maximum punishment, while replacing them with
qualified lawyers and judges
Statewide control eliminates disparities between counties

A suggestion to minimize the geographical disparity that exists in the death penalty is to utilize
committees to make the decision to seek the death penalty (Horowitz, 1997). This specifi c recommendation is that the
legislature create committees consisting of seven persons, including three appointed by the governor,
three appointed by the prosecuting attorney, and one appointed by the other six members. The proposal
would leave all prosecutorial powers in place with the exception of whether to seek the death penalty
(Horowitz, 1997). The prosecuting attorney would still make the decision to charge the defendant with fi rst-degree murder, but the decision to
seek death would reside with the committee. The
prosecutor in this regime would still have the authority to enter into
a plea agreement that avoids death, leaving open some continued risk of disparate treatment. The appointment
of committee members by elected officials recognizes the politicization of the death penalty but was argued to lessen the influence of politics on
the actual decision to seek death (Horowitz, 1997).
Another possible recommendation is to move capital litigation to a statewide prosecutors’ office in the
same vein as those utilized in centralized state public defender offices that control capital defense. Most
states employ systems in which the decision to seek death and the costs of the prosecution fall on the
county. Some counties are reluctant to incur the expense of a capital trial, which may result in underutilization of the death penalty. Other
counties may be more aggressive and try more marginal cases, resulting in over-utilization, which may produce acquittals and reversals on appeal
Intrastate geographical disparity caused by local financial constraints may be one
(Gershowitz, 2010).
explanation for the arbitrary application of the death penalty (Rupp, 2003). Statewide control and
funding of the death penalty process is argued to be a means to eliminate the intrastate geographical
disparity that is seen throughout the country.
2NC – Solvency – Discretion – AT: Defenders
Specialized counsel and funding solves bad defense lawyers

To ensure access to effective assistance of counsel , all states should adopt the ABA standards for
capital defense that are applicable to indigent and retained defense. States should establish specialized
units of defense counsel for indigent capital cases and provide adequate funding for investigation,
expert witnesses, and mitigation. Provisions should also be made for additional resources and support for
privately retained counsel in appropriate cases.
2NC – Solvency – Discretion – AT: Error
Legal experience eliminates prevents reversals, retrials, and arbitrariness

Experience of prosecutors is also an issue. Counties that rarely seek the death penalty may have
prosecutors with little or no experience in the highly technical arena of capital litigation. Lack of
experience may lead to errors in motions and trial and produce reversible errors. It is suggested that use
of specialized teams of prosecutors as well as defense counsel and judges would reduce reversals and
retrials , which in turn would ultimately produce cost savings for the government (Gershowitz, 2010).
Such a system eliminates the financial concerns for many counties as well as the arbitrariness that can
result from individual beliefs and perspectives of different prosecutors.
2NC – Solvency – Juries
Race-conscious jury selection avoids stacking the jury with white people or capital
punishment supporters---that prevents racial bias from causing discrimination in
sentencing
Race-conscious jury reform can work---our CP learned from past mistakes,

evaluated the failures of past reforms, and found a meaningful connection between
the CP and race-conscious behaviors that closed the racial gap on juries
From its inception, the United States’ legal system has had to contend with deleterious forms of discrimination that inhibit meaningful progress
toward the realization of its constitutional principles. One such principle is a criminal defendant’s right to an impartial jury of her peers. The
Batson line of cases has established a framework that attempts to remedy the longstanding problem of
race-based exclusion. But its effects, at least on the demographic make-up of juries, is mixed . Having failed
to displace race-based exclusion entirely, it is fair to question what its impact and import are for
contemporary legal practice.
This Article, drawing on data from an extensive field study, suggests the need for a shift in perspective from outcomes to
processes, from juries to jury selection, from quantitative indicators to decision-making and strategy.
Doing so sheds new empirical light on the complex interplay between anti-discrimination doctrine and
legal practice. There has been a clear doctrinal shift in courts’ analysis of juror questioning and striking,
expanding the scope of judicial inquiry during the adjudication of Batson challenges from scrutiny of
individual “neutral” rationales for juror dismissals to a more robust comparative juror analysis. My empirical
findings indicate that there is a meaningful connection between this latter approach and a host of race-
conscious prosecutorial behaviors during voir dire. Having identified and described this link, it becomes possible to
perform a deeper audit of the Batson framework, and suggest, as I do, that with reform and expansion, it may serve to close
the gap between juries as they are and juries as the constitution would have them be.
2NC – Solvency – Juries – AT: What’s ‘Objective’?
General Rule 37 in the state of Washington was effective---it created an objective

assessment of racial bias in jury selection by designating an objective observer
trained in implicit, unconscious, and institutional bias to evaluate strikes
But the court was dissatisfied. Citing Batson’s documented limitations, 203 including those noted in the last section, Jefferson adopted a
new rule (General Rule 37, or “ GR37 ”) and framework for discerning litigant bias. Among the
innovations of GR37 was the substitution of subjective assessments of purposeful discrimination for
consideration of how an “ objective observer could view race or ethnicity as a factor in the use of the
peremptory challenge” during the adjudication of a Batson challenge.204 Moreover, the objective observer imagined by the rule
would be someone trained in the prevalence of “implicit, unconscious, and institutional” bias , able to
look beneath the surface of apparently neutral strike rationales.205
Though GR37 was not in effect at the time of Jefferson’s prosecution, it became
effective during the case’s appeal.206 Applying
the rule’s new and objective evaluative criteria for detecting discrimination, the Supreme Court held that
an observer could find that the “neutral” reasons advanced for Juror 10’s removal raised an “inference of
explicit bias.”207 Following Jefferson, GR37 was applied in a Washington state case in which a juror alleged
she was taunted and accused by fellow jurors during deliberations for being the sole hold-out in a
homicide prosecution on account of her race.208 In asserting that the trial court failed conduct an
appropriate inquiry into the juror’s allegations of “differential treatment,” the Court reasoned that the
nature of implicit bias was such that plausible “neutral” explanations could always be offered, demanding
the more searching inquiry that would come from an evidentiary hearing before deciding whether to grant
the defendant’s motion for a new trial.209 Building on G37’s expansion of judges’ evidentiary resources for ruling on Batson
challenges, courts in California,210 Oregon,211 and Connecticut may follow suit in their own assessments of Batson challenges.
2NC – Prosecutors Key
Prosecutorial discretion is key to geographical and racial disparity

Geographical Disparity—Prosecutorial Discretion
The narrowing of death-eligible offenses and offenders is one factor in the reduction in the use of capital punishment. Another signifi cant factor
prosecutorial discretion . In most jurisdictions , the decision to charge as capital murder and to
is that of
proceed to trial as a potential death case rests solely with the prosecuting attorney (Horowitz, 1997). The decision
may turn on specifi c facts of the case, local funding for capital trials, political considerations, or the personal view of the prosecutor as to capital
punishment. An elected prosecutor who appoints assistant or deputy prosecutors typically heads state court prosecutors’ offi ces. The political
nature of the elected prosecutor provides some degree of local control over the functions of the offi ce, including the decision to seek the death
penalty. However, this local influence can also result in geographical disparity within states (Horowitz, 1997).
2% of the counties in the United States are responsible for

Geographical disparity is starkly illustrated by the fact that
more than half of the death sentences in the country. One state, Texas, has produced 38% of
executions in the post-Gregg era. The Southern states are responsible for 82% of executions, compared to only 1% for the northeast
(Dieter, 2013). Even within the state of Texas, the national leader in executions, Harris County (Houston), Texas, is clearly “the capital of capital
punishment” (Phillips, 2008, p. 809). Between 1976 and 2008, Harris County, Texas, produced 104 executions. This number amounted to more
than the other major urban areas in Texas combined and more than one-fourth of the executions in the state of Texas. Harris County alone
produced more executions than the number two ranking execution state of Virginia (Phillips, 2008).
A study of geographical and racial disparity in Maryland by Paternoster, Brame, Bacon, and Ditchfi eld (2004) found signifi
cant differences between jurisdictions. A Baltimore County case was found to have an unconditional probability of a death sentence
that was 23 times greater than in Baltimore City even after considering individual case characteristics. This geographical disparity across the state
was found to be consistent comparing multiple jurisdictions, with some counties aggressively pursuing the death penalty
and others being much less likely to do so.
The geographical disparity in the use of capital punishment is compounded by the fact that the decision to
seek the death penalty rests with the local elected prosecuting attorney, whose discretion is largely
uncontrolled by other government officials. New York and a few other states have a statutory procedure whereby the governor
can supersede prosecutorial discretion and transfer control over a case to the state attorney general (Horowitz, 1997). The courts have generally
refused to interfere with prosecutorial discretion. The Fifth Circuit Court of Appeals upheld the decision of the United States Attorney to not
prosecute a person despite a grand jury decision recommending indictment ( United States v. Cox, 1965). In McCleskey v. Kemp (1987) the U.S.
Supreme Court noted without disapproval the broad discretion afforded prosecutors in charging and other decisions.More central control of
capital punishment also exists at the federal level. Decisions to seek the death penalty, or enter plea agreements of capital cases must be approved
by the U.S. Attorney General (Gould & Greenman, 2010).
2NC – Defenders Key
Quality defense representation makes outcomes more fair

Quality of Defense Representation
Strickland v. Washington (1984) held that the Sixth Amendment requires not only assistance of counsel in criminal trial but effective assistance
of counsel. In Strickland, SCOTUS established the twopronged test of effectiveness requiring proof that: (1) defense counsel was defi cient in
performance; and (2) that this defi cient performance resulted in prejudice to the defendant. The prejudice prong of Strickland is often diffi cult
for the capital defendant to prove in a postconviction challenge based upon a claim of ineffective counsel (White, 2006). Horror stories abound of
inexperienced, unprepared, drug- and alcohol-impaired, and even sleeping attorneys representing indigent defendants in capital trials that resulted
in death sentences (White, 2006; Bright, 1994).
Some states have taken steps to remedy the problems related to effective assistance of counsel for those
who lack the fi nancial means to retain quality counsel and mount an effective defense. Many states now
have public defender systems that include highly qualified and well-financed capital litigation teams.
A 2010 report to the American Bar Association indicated that two-thirds of the states have a statewide commission that
provides some level of supervision and standards for indigent defense (Stevens, Sheppard, Spangenberg, Wickman, &
Gould, 2010). The report also found that 23 states provide 100% of the funding for indigent defense , with another eight
states providing one-half or more of the funding. Eighteen states have indigent defense systems that are more than 50% funded by counties, and
one state, Pennsylvania, leaves the full burden on the counties. Funding
for indigent capital defense is a patchwork of
methods that includes full state funding, reimbursement to counties in varying amounts, and county
funding (Stevens et al., 2010).
In 2000, the state of North Carolina created a statewide offi ce to oversee indigent defense, including all
capital cases. The agency established rigorous standards for defense counsel in capital trials and appeals.
Following these reforms, the state of North Carolina saw the number of annual death sentences imposed
drop from an average of 12 per year to 5 (Woodward, 2007). This illustrates the importance of state
commitment to capital indigent defense.
While some states have seriously addressed the task of providing effective assistance of counsel in capital
cases, others still demonstrate only minimal concern for this important issue . As recently as 2010, it was reported
that Texas and Alabama lacked public defender systems , leaving local judges to appoint counsel for
indigent defendants at the sole discretion of the judge without regard to qualifi - cation or experience
(Bright, 2010). This practice has led to questions of attorney loyalty to clients, including anecdotal reports of
attorneys refusing to ask for needed continuances for fear of alienating the judge upon whom the attorney
relies for appointment to cases (Bright, 2010). States that have public defender systems must also appropriate
adequate funding in order to ensure effective representation. Critics have complained of woefully
inadequate funding of public defender services in Georgia, even for capital cases (Bright, 2010).
The American Bar Association (ABA) has developed standards for defense counsel in capital cases that
have been described as “the single most authoritative summary of the prevailing professional norms in the
realm of capital defense practice” (Stetler & Wendel, 2014, p. 635). The ABA standards include requiring at least
two defense attorneys for any capital case who meet practice experience in criminal and capital litigation,
investigation practices, plea negotiations, motions practice, and sentencing (White, 2001). The ABA Guidelines
(2003) also require an investigator and a mitigation specialist for the defense team . While the ABA Guidelines do not
have the force of law, they have been recognized as “well defi ned norms” of capital litigation ( Wiggins v. Smith, 2003, p. 524). Even if the
United States Supreme Court does not recognize the ABA Guidelines as law, all
states should adopt these guidelines for capital
cases. Other reforms to the methods of providing effective defense counsel may include establishment of
a registry of defense counsel who meet experience and training standards, equivalent funding and other
resources for defense and prosecution, and peer review of defense lawyers and defense systems (Liebman,
2002).
Such actions could also address the oft-ignored issue of quality representation provided by retained
counsel for those defendants who are not eligible for appointed counsel but not wealthy enough to put on
a truly effective defense. In Furman v. Georgia (1972), Justice Douglas astutely pointed out that the rich and the poor may have good
representation. Douglas noted that the poor often have the best lawyers appointed to represent them and the rich have the means to hire the best.
The middle class can usually hire a lawyer, “but not a very good one” (p. 256). This is very true today, as many states have special teams of
highly qualifi ed and well-trained and fi nanced teams of capital litigators to represent the poor. The middle class will not be eligible for a public
fi nanced defense but will be hard pressed to have the resources to hire an experienced capital defense counsel, mitigation specialists and
expensive experts that are necessary to mount an effective defense.
AT: Perm do both
Links to the case turns---the death penalty should exist for the most heinous crimes
There are killings so disturbing and killers so dangerous that some states and the federal government
may wish to retain the death penalty as an option for those few crimes. Capital punishment has value
as a symbol of official response to the most egregious of crimes. It has value to the families of some
murder victims as a measure of retributive (with this term used based upon current nomenclature) and desert justice that
rebalances the scales that were so violently tipped by the murder. While needed in appropriate and limited cases, capital
punishment has serious problems that must be addressed in order to be able to fulfi ll its purposes.
Governments may be hard pressed to resolve the issues of arbitrary geographical and racial disparity, costs, and extreme delays in executions that
in recent years are produced largely by endless litigation and drug availability related to lethal injection as the method of execution. The fact that
seven states have legislatively abolished the death penalty, or refused to override judicial mandate, since 2007 is indicative of that sentiment.
However, the
fact that an election in one of those recent abolition states ( Nebraska ) brought it back in 2016
is evidence that voters want the death penalty as an option.
If the most problematic issues can be addressed, the death penalty can again be viable . Just as
Gregg v. Georgia (1976) revived a previously deeply fl awed system of the ultimate punishment, new
reforms can also correct the fl aws that remained or have developed in post- Gregg capital litigation . This
chapter has offered solutions to geographical and racial disparity, defense, delays, methods of execution, and
cost. The reforms that may face the most serious political challenges are those related to local prosecutorial control of certain death penalty
decision making. These challenges are serious and may be diffi cult to address and resolve. But all of these challenges to the continued use of the
death penalty as an option must be faced by any states that wish to retain the death penalty as a viable punishment for the most egregious of
murders. States that cannot, or will not, address these issues may be better off to conclude that the death penalty is more trouble than it is worth.
*Other Planks*
1NC – Limit Eligibility Plank
-limit capital punishment to murder situations of more than one victim, involving
torture, in a correctional institution, or of persons in judicial processes
Limiting death-eligible offenses reduces the risk of wrongful execution

Gregg v. Georgia (1976) permitted the reinstatement of the death penalty, at least in part, on the basis of
jury consideration of aggravating and mitigating factors as a remedy to the unfettered discretion that
the court found unconstitutional in Furman (1972). The states and the federal courts utilize a system of statutory aggravating
factors and require that the jury fi nd the existence of at least one of these aggravators. It has been suggested that many of these factors
are overly vague and promote an unreasonably broad application of the death penalty (Kirchmeier, 1998).
Further narrowing of death-eligible offenders may be made by revisions to statutory aggravating

factors. The U.S. Supreme Court has held that the purpose of statutory aggravating factors is to limit the
scope of death-eligible offenses ( Zant v. Stephens, 1983). Critics state that some states use the overly broad
aggravating factor of a murder that is committed during the course of a robbery (Blecker, 2001). The remedy
is to replace one overly broad aggravating factor with three more focused aggravators: the killing of an
unresisting victim, killing for economic gain, or killing an innocent witness to the crime (Blecker, 2001). It
could be argued that most robberies that result in a death could fall within the scope of these suggested more
narrow aggravating factors, but this suggestion appears to be a reasonable narrowing of capital offenses
(Kirchmeier, 1998). Another proposal that may have some merit is from the Constitution Project and would limit capital punishment
to the following situations: (1) the murder of a police offi cer acting in the line of duty; (2) a murder
committed in a correctional institution; (3) murder of more than one victim; (4) murder involving torture;
and (5) murder of persons involved in judicial processes such as judges, prosecutors, investigators, or
witnesses (Bohm, 2017). Bohm (2017) suggests that such revisions to statutory aggravators will have the effect of
reducing the total number of death sentences and thus lessening the risk of convicting and executing
an innocent person.
1NC – Innocence Plank
-rule that execution of an innocent person is cruel and unusual punishment and
accept freestanding claims of innocence
The CP reduces wrongful executions

Innocence
156 persons have been exonerated and released from sentences

The Death Penalty Information Center (n.d.e) reports that
of death since 1973. All but seven of those were prior to 2000 . Improvements in forensic science and
the already extensive process of appeals and postconviction review have done much to lessen the risk
of wrongful conviction and execution. Accordingly, this chapter will not address this issue other than to support the position that
courts should accept freestanding claims of innocence upon a showing of clear and convincing evidence
that the prisoner is factually not guilty. The United States Supreme Court has been reluctant to take up claims of innocence absent a
corresponding constitutional violation “because of the very disruptive effect that entertaining claims of actual innocence would have on the need
for fi nality in capital cases” ( Herrera v. Collins, 1993, p. 417).
While disruptive, the

extreme nature of the capital punishment makes it unconscionable to put to death an
innocent person. Finality should yield to fairness. It is manifestly unfair for the state to kill an innocent person. The
practice of allowing freestanding claims of actual innocence would further reduce any risk of wrongful
executions . The United States Supreme Court should clearly rule that execution of an innocent person is
a violation of the Eighth Amendment prohibition against cruel and unusual punishment and that such a
claim may be the basis for federal habeas relief (Mourer, 2010).
1NC – Review Plank
Reviews solve errors and life-denying delays

Marah Stith McLeod 18, Associate Professor, Notre Dame Law School. J.D., Yale Law School, "The
Death Penalty as Incapacitation", Virginia Law Review, Oct 2018, Vol 104, Issue 6,
https://www.virginialawreview.org/volumes/content/death-penalty-incapacitation
The incapacitation rationale cannot be cast aside because of the second objection—that of prediction error—either. Though prediction
error is a real and grave problem for just pursuit of the incapacitation rationale, it is a problem that can be significantly reduced
by reevaluating future dangerousness over time. Such review could be conducted every five years, for
example, and would consider all the evidence, including probative information regarding a prisoner’s
behavior while incarcerated. A state commission or parole board could conduct such review. If a prisoner
sentenced to death because of future dangerousness were found no longer to pose a threat, his death
sentence would be reduced to life .20 This reform would accord with an existing trend toward
reevaluation of long-term sentences and renewed focus on risk and rehabilitation .21 By reconsidering
future dangerousness in this way, capital punishment jurisdictions can transform the bane of execution
delay 22 into a source of greater fairness and consistency in capital sentencing.
AT: Racism Adv
1NC – Incapacitation Turn
Incapacitation saves lives by preventing future murders---recidivism, clemency,

escape, and in-prison violence
incapacitation is the most straightforward argument and the simplest justifi cation
Cassell (2004) argues that
to grasp because it saves innocent lives by preventing convicted murders from killing again. If
someone’s life is taken away, he no longer poses a risk to society and cannot commit serious crimes again
in the future. This justifi cation hinges on the concept of recidivism , which is the relapse of criminal
behavior once punishment for past crime has been administered.
There are ample cases to illustrate the need for incapacitation by the use of capital punishment. Kenneth
Allen McDuff was a serial killer who was sentenced to death in Texas for the 1991 kidnapping, rape, and murder
of Colleen Reed. Not satisfied with merely repeatedly raping his victim, he inserted burning cigarettes into her vagina before fi nally killing her
as she begged for her life. The horror endured by Colleen Reed is even more noteworthy because McDuff
had previously been
sentenced to death for the 1966 killing of two teenaged boys and another torturous rape and killing of a teenaged girl. McDuff
escaped death by virtue of the temporary suspension of the death penalty in Furman v. Georgia in 1972.
McDuff, the previously condemned killer, was released from custody in 1989, setting the stage for his kidnapping-rape-torture-murder of Colleen
Reed (Cassell, 2004).
The option of life without parole (LWOP) carries no assurance that the prisoner will not be returned to
the community. Executive clemency gives governors and presidents the power to pardon a prisoner or
commute a sentence of LWOP to a term of years (van den Haag, 2014). A release by executive clemency is not
possible if the prisoner has been executed. There is also the risk of escape. The notorious 2015 case in
which a New York prison staff member aided two convicted murderers in their escape from custody is
illustrative of this risk (CNN, July 29, 2015). While these two men were not convicted of capital murder, they were convicted killers.
While rare, it is not impossible for a prisoner in isolation, or even death row, to escape . Troy Leon
Gregg , who was sentenced to death via the case that reinstated capital punishment, escaped from
Georgia’s death row with three other inmates in 1980. The escape was short-lived, with three of the men being captured
within a day and Gregg being found dead after being beaten to death (Bohm, 2017). While this fact indicates that even a death sentence
does not preclude any chance of escape, it does support the argument that only a completed death sentence avoids
any chance of escape and repeating acts of violence against free citizens. An LWOP sentence presents
the opportunity for the murderer to kill again, with prison staff or other inmates as potential future
victims. A prisoner serving life without parole who kills other inmates or a guard will face no
punishment other than what he has already earned—another LWOP sentence (Marquis, 2004, p. 127). As is seen
from these examples, “some innocent people will die if we abolish the death penalty ” (Cassell, 2004, p.
188).
2NC – Incapacitation Turn
Life without parole is a fate worse than death---turns morality impacts

Those who cite life without parole as a reason to ignore the incapacitation rationale for execution seem to
overlook another facet of inhumanity in that alternative, as well. Like the death penalty, life without parole
reflects an absolute and irrevocable condemnation of the prisoner. It denies him all hope of social
rehabilitation or restoration to the human community . In a recent case barring life without parole for juvenile
offenders, the Supreme Court concluded that such offenders are not sufficiently culpable to deserve a penalty that “forswears altogether the
rehabilitative ideal” and that represents “an irrevocable judgment about that person’s value and place in society.”149 The
hopelessness
of life without parole,150 made more cruel when coupled with solitary confinement, has led some critics to
denounce it as a “living death” 151 and even “worse than death.” 152
Solitary confinement is soul killing and turns the torture advantage

Critics who argue that the death penalty is unnecessary because of solitary confinement rarely stop to consider the severity and cruelty of that
alternative in making this claim. However, an enormous body of research and scholarship has revealed that extraordinary harms
follow from prolonged and even short-term solitary confinement . Critics describe it as a form of torture .115
Studies have demonstrated that extreme psychological, physical, and spiritual damage can result from such
isolation. Some prisoners go insane; others become violent; others fall into severe depression; some
commit suicide.116 One study found prisoners in solitary confinement five times more likely to commit suicide
than other prisoners. In order to kill themselves “in a bare cell . . . [s]ome prisoners have resorted to jumping head-first off their bunks;
others have bitten through the veins in their arms.”117 For those who remained alive after years in solitary confinement,
their ability to interact safely with others outside isolation was reduced, if not eliminated . Such
confinement may impair a person’s ability to reason, undercutting his capacity for self-reflection, self-
control, and rehabilitation. The enduring deprivation of social interaction may take away what is
quintessentially human—a person’s ability to reason and relate to others—and may completely destroy
the human mind and spirit.
2NC – Incapacitation Turn – AT: Brutalization Effect
Brutalization effect is wrong and not statistically proven

Michael L. Radelet 09, Ph.D., Professor and Chair, Department of Sociology, University of Colorado-
Boulder, "Do Executions Lower Homicide Rates: The Views of Leading Criminologists '", Journal of
Criminal Law and Criminology, Volume 99, Issue 2, Winter, Article 4,
https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7323&context=jclc
A second reexamination of the Mocan-Gittings study was conducted by Jeffrey Fagan.36 Fagan's
work is the most
comprehensive review of the theoretical and methodological shortcomings of deterrence studies published
after 2000. He first improved Mocan's measure of deterrence, which is the number of executions in a given state divided by the number of death
sentences imposed six years earlier.37 Because of the impossibility of computing this measure if the denominator is zero, Mocan and Gittings
coded years with no death sentences as .99.38 Fagan reanalyzed the data using .01 (which is closer to zero) in the denominator rather than .99.
That simple improvement made all the deterrent effects found by Mocan and Gittings disappear.39
potential offenders are unlikely to remember the number of death sentences

Furthermore, Fagan noted that
imposed in their states six or seven years prior to their crime .40 Instead, he computed a variable measuring
deterrence by calculating the number of executions in the previous year divided by the number of death
sentences handed down two years earlier (rather than six). Again, this minor adjustment makes the deterrent
effect observed by Mocan and Gittings disappear .
Fagan also showed that alternative
statistical models that consider the strong correlation of homicide rates from
year to year within a given state also produce results that eliminate any deterrent effects. 4' In addition, because
the data set used by Mocan and Gittings to count homicides has wide gaps with missing data, Fagan used Morbidity and Mortality data from the
National Center for Health Statistics to improve the measure of homicides. 42 Again, these minor adjustments and corrections
eliminated the relationship between executions and homicide rates.
small changes in their assumptions

Rather than prove that Mocan and Gittings erred in their assumptions, Fagan showed that
could produce wild fluctuations in their deterrence estimates . For instance, a small change could
cause a positive deterrence effect, no deterrence effect, or even the brutalization effect, in which
each execution increases the homicide rate . 3 Unfortunately, Mocan and Gittings have not responded to Berk's and Fagan's
critiques.
2NC – Incapacitation Turn – AT: LWOP Not Violent
In-prison violence causes more severe harms than the death penalty itself
Furthermore, even with all this harshness, the

non-lethal alternative of life without parole may be inadequate to
protect the lives and safety of others. It may protect those who live in free society outside the prison walls, for the risk of prisoner
escape may be small160 and can be mitigated through perimeter security measures; but it may not ensure safety for those who
live in the society within the prison walls— inmates , prison guards (who are often unarmed161), medical staff ,
chaplains , and the visiting families and friends of prisoners. Some might have little sympathy for violent criminals who
may be potential victims, but “[b]eing violently assaulted in prison is simply not ‘part of the penalty that
criminal offenders pay for their offenses against society.’” 162 Some number of capital murderers are likely
to commit future acts of violence against their fellow prisoners or prison guards ,163 and government has
the right and the responsibility to protect prisoners and guards from them, particularly if prison
restrictions render these potential victims exposed and defenseless .164
Where then does this leave us? For one, it is clear that non-lethal alternatives do not render the incapacitation rationale for capital punishment
Future violence cannot be avoided by such non-lethal means without different and perhaps
irrelevant.
more severe harms . That does not mean that society must impose the death penalty on dangerous murderers rather than accept their
likelihood of continued violence or subject them to torturous forms of restraint.165 However, just as the death penalty should not remain part of
our law only as “the product of habit and inattention rather than an acceptable deliberative process,”166 neither should these alternatives be
embraced without reasoned deliberation and a clear view of the harms that they entail.
It's a double-edged sword---life without parole either exposes fellow inmates to

violence, or puts capital offenders in solitary confinement---turns case
2. Life Without Parole
But solitary confinement is not the only non-lethal alternative. Many commentators point
to life imprisonment as the logical
and adequate alternative to execution for prisoners who will remain violent . A closer examination of this alternative
reveals two significant problems. On the one hand, life in prison may not incapacitate truly dangerous
prisoners .142 On the other hand, if it does incapacitate them, that is most likely because it entails the
same kinds of isolation and restraint that make solitary confinement so inhumane . For threatening,
capital offenders, this non-lethal alternative still leaves us with agonizing future choices of either
dangerous inadequacy or torturous restraint.
Turning first to the question of adequacy, it is readily apparent that life without parole may not prevent dangerous capital
offenders from committing future violence.143 A lengthy report by the American Civil Liberties Union (“ACLU”) described the
violence that prisoners sentenced to life without parole routinely encounter: “ More than 75 percent (76.9 percent) of the
prisoners surveyed by the ACLU reported that they had been assaulted or had witnessed other prisoners
being assaulted [or] raped . . . .”144 The report found that the “day-today lives [of life without parole prisoners]
are marked by lack of privacy, shakedowns, lockdowns, full-body searches, and extensive and intrusive
control over every aspect of their lives . . . . They witness—and constantly fear—violence , assault, sexual
abuse, and rape.”145 One prisoner recounted:
I have seen men with their throats cut, their bellies cut open with their guts hanging out . . . and I have seen men with knives stuck deep into their
skulls and more. I have seen men stomped into vegetative states and with all their teeth kicked out. A man died in my arms.146
It is evident that life

without parole, without more, is not fully incapacitating. Life-long incarceration protects
those outside prison walls from dangerous inmates but leaves fellow inmates vulnerable to attack without
means of self-protection or the ability to retreat.
To stem this violence, prisoners sentenced to life without parole are frequently subjected to solitary
confinement.147 Studies reveal that unless (and perhaps even if) life without parole is coupled with severe
restrictions and isolation, it may not suffice to protect others from very dangerous capital
offenders. This requires us again to ask whether this alternative is really more defensible than execution
—a question that depends on competing normative commitments such as the state’s moral and constitutional148 duty to protect those
in its custody and service, the importance of human dignity , and the value of human life . One cannot reach a
deliberate and reasoned approach to those trade-offs if one simply ignores the threat of future danger on
the ground that life without parole is an option.
2NC – Incapacitation Turn – AT: Error
Non-death penalties are less revocable than a death sentence---special scrutiny

means more habeas petitions, exonerations, and abolitionist attorneys
https://www.virginialawreview.org/volumes/content/death-penalty-incapacitationmc
Those who conclude that the death penalty is unnecessarily harsh also rely too heavily upon the assertion that the death penalty is irremediable.
The matter is more complicated. It is true that only
execution is irrevocable. But capital sentencing errors are far
more likely to be remedied than errors in non-capital sentences , because death sentences receive
special scrutiny . The Supreme Court has held that due process requires “heightened reliability” for a
sentence of death.153 Statistics bear out the results. One study found that federal habeas petitions were granted
in capital cases at a rate thirty-five times higher than in non-capital cases.154 Another found that “courts (or State
Governors ) are 130 times more likely to exonerate a defendant where a death sentence is at issue.” 155 In
contrast, life without parole sentences “receive no special consideration on appeal, which limits the
possibility they will be reduced or reversed.”156 When it comes to error, a death sentence can make a
vital difference.
Death sentences also garner the scrutiny of abolitionist attorneys . The story of death row exoneree
Joseph Amrine illustrates how important that can be. Amrine was convicted of killing a fellow prisoner,
though he was innocent . Amrine realized that only a death sentence would garner the attention of
abolitionist attorneys and offer him hope of eventual freedom. If he were sentenced to life in prison, he
would die in prison. So Amrine asked the jury for death, and the jury granted his wish.157 Over the years that followed, his
case captured the attention of abolitionist attorneys and death penalty critics, and he was exonerated .158
In the end, his death sentence saved his life.
These considerations reveal that the proposednon-lethal alternatives are not the obviously superior alternatives to the death penalty
that scholars like Bedau have claimed.159 They are extremely severe, and may bring condemnation and suffering to the
offender that are even less revocable than a sentence of death.

1NC – Retribution Turn
Retribution is moral and avoids public violence from backlash

Some killings are so egregious that it seems nothing else will do . The killer has forfeited his
right to life. In such cases a punishment of life imprisonment, even without the possibility of parole, lacks
proportionality. Where deterrence, rehabilitation and incapacitation are forward looking and seek to prevent future criminal conduct,
retribution is backward looking, with little concern for crime prevention (van den Haag, 2014). “The paramount moral purpose of
punishment is retributive justice” (van den Haag, 2014, p. 233). It has also been suggested that the greater the punishment,
the greater the use of retribution as the justifi cation for the punishment (Radelet, 2016). Kant ian philosophy
proposes that death is the appropriate punishment for murder because there is no equivalence with
any other form of punishment (Potter, 2002). In modern jurisprudence, the killer has wrongfully taken the life
of another under aggravated circumstances that outweigh any mitigating factors . The United States Supreme Court
held that “the primary justifi cation for the death penalty is retribution” ( Spaziano v. Florida , 1984, p. 461).
Retribution is not revenge. Retribution is a function of the government to mete out justice to those who
have violated the codifi ed criminal law of the state. This is in contrast to vengeance, which is a personal
and private human response to crime by individuals (Robinson, 2008). Some may confl ate retribution with revenge,
suggesting that revenge is an improper justifi cation for the death penalty. Such a position ignores the purpose of retribution as a reasonable
state response to criminal conduct and “is aimed at rebalancing the scales of justice that were unfairly tipped in the
favor of the offender when he or she committed a crime” (Robinson, 2008, p. 115).
Justice Potter Stewart stated in his concurring opinion in Furman that retribution cannot be ignored as a justifi cation for punishment.
I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The
instinct for retribution
is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an
important purpose in promoting the stability of a society governed by law. When people begin to
believe that organized society is unwilling or unable to impose upon criminal offenders the punishment
they ‘deserve,’ then there are sown the seeds of anarchy -of self-help, vigilante justice , and lynch
law . ( Furman v. Georgia , 1972, p. 308)
The death penalty thus operates to satisfy the demand for punishment by society and victims. The
application of retributive justice to crime and punishment may defuse and limit the demand for
vigilante justice by some victims and families of victims. Cassell (2004, p. 197) opines: “[c]apital punishment’s
retributive function vindicates the fundamental moral principles that a criminal should receive his just
deserts. Even if capital punishment had no incapacitative or deterrent utility, its use would be
justified on this basis alone ” (p. 197).
2NC – Retribution Turn
Some acts are so egregious they require a higher level of punishment

The relationships between retribution and desert justice have been described as dichotomous purposes of punishment. Retribution
as
revenge is seen as satisfying a societal need to even the score with the offender, and more directed at the
relationship between the victim and the offender. Retribution as just deserts is a resetting of the scales of
justice by meting out a punishment that is commensurate with the crime and more focused on the
relationship between the offender and the community at large (Gerber & Jackson, 2013). Quite simply, this killer
deserves to die. There is an elegant proportionality to death as the penalty for an aggravated murder. The death penalty is also
necessary to distinguish the more egregious of aggravated murders from those that are less horrific. If
the death penalty were not an option, then the only way to distinguish more aggravated murders is to
lessen the punishment for less, but still aggravated, murders (Davis, 2002).
It could be argued that aconsideration of desert-based justice demands a more fact-based analysis. The facts of
some cases are so disturbing as to cry out for a sentence of death. Yet the facts proven in death penalty
cases are often omitted from the arguments offered by opponents of the death penalty. “In some ways, these
discussions are a bit like playing Hamlet without the ghost, reviewing the merits of capital punishment
without revealing just what a capital crime is really like and how the victims have been brutalized ” (Cassell,
2004, p. 183). Take the case of Juan Carlos Chavez , who kidnapped a 9-year-old boy at gunpoint. Chavez forced the boy into his truck
and took him to his trailer, had him remove his clothes, had him lay face down on the bed and proceeded to anally rape the sobbing little boy.
When Chavez discovered that police were searching for the boy and getting closer to them, he shot the boy as he tried to run away. Chavez hid
the body for three days until he devised his plan to dispose of the body, which he dismembered and placed the parts in three planters and covered
them with cement ( Chavez v. State, 2002). Timothy McVeigh has been called the “most hated man in America” for his role in the
horrifi c bombing of the Oklahoma City federal building that killed 168 and injured over 500 more on April 29, 1995 (Jones & Gideon, 1998, p.
621). McVeigh and his co-conspirator, Terry Nichols, created a 3,000–6,000 pound bomb with the intent of killing government employees in the
Murrah Federal Building as retaliation against the federal government for its action in the deaths that resulted from the 1993 Branch Davidian
siege in Waco, Texas ( United States v. McVeigh, 1998). The blast destroyed the federal building and caused carnage so horrifi c that victims
testifi ed of escaping by “following a trail of blood out of the building” (p. 1202). Testimony included descriptions of
a survivor who had lost an eye but who had not yet realized it and helping hold parents back as rescue workers brought out dead children from the
day care center; Garrett’s frantic search to fi nd her son and her description of the dead children lined up on the street covered with glass
combined with her pleas to “please don’t lay our babies on this glass” because she did not realize that the babies were “already dead.” (p. 1202)
The blast ignited by McVeigh killed 168 persons, including 19 children, and injured 674 others (Madeira, 2008). Can
such deliberate,
premeditated and indiscriminate carnage be adequately punished by anything except the forfeiture of the
life of the killer? These descriptions from published court opinions can have a powerful effect, yet they pale
in comparison to the suffering of the victims. As reported by Judge Alex Kozinski (2004), early in his legal career
“[w]hatever qualms I had about the effi cacy or morality of the death penalty were drowned out by the
pitiful cries of the victims screaming from between the lines of dry legal prose” (p. 2).
1NC – Not Racist
The death penalty isn’t racist---no disproportionality or white victim effect---their

research is biased by ideology
Anthony Walsh 17, Virginia Hatch, Professors, Criminal Justice, Boise State University, 1/31/17,
"Ideology, Race, and the Death Penalty: "Lies, Damn Lies, and Statistics" in Advocacy Research",
Journal of Ideology, Vol 37, Number 1, Article 2, https://scholarcommons.sc.edu/cgi/viewcontent.cgi?
article=1006&context=ji
We have used the death penalty literature to examine the
role of ideology in researching the issue as it pertains to race,
and in the popular media's interpretation of it. As a deeply emotional issue, we should expect ideology to
play a larger role than it does in more dispassionate topics. We have noted Kuhn's (1970) statement that research that
does not fit into the current paradigm— the conventional wisdom —is "often not seen at all" and
provided examples (p. 24). The first example was the argument of disproportionality in which comparisons are made
between the proportions of people of each race on death row and who have been executed and their
proportions of the general population. Many commentators have been guilty of "often not seeing at all" that this is an invalid
comparison, and that the correct comparison should be made between the respective racial proportions of the
sub-populations of murderers who are eligible for the death penalty.
It is understandable why journalist may fail to grasp the distinction. Gilbert (1997, p. 124) asserts that because "the majority of journalists hold
distinctly liberal positions on political and social issues" the media rushes to embrace sensationalized "advocacy research" and are ever looking
for stories that cast journalists "in the role of moral guardians." Advocacy
research has a noble history in bringing problems to
public attention and raising consciousness, but advocacy is not science. The role of social scientists qua scientists is
to engage problems as objectively and dispassionately as possible, not to inflate them and redefine them
in ways that fit a particular ideological preference.
Unlike journalists, many death penalty researchers recognized the fallacy and shifted the focus from
defendant-centered to victim-centered research with the realization that the situation has reversed itself,
with white defendants being proportionately more likely than black defendants to receive a death
sentence . Much of this discourse has centered on the famous 1983 study of David Baldus and his
colleagues which was quoted at length in the United States Supreme Court case of McClesky v. Kemp
(1987). We saw that the Court's error in this case was to misinterpret an odds ratio as a "greater likelihood"
or as “more times likely.” Nevertheless, it is demonstrably true that white victim case s are more likely to
draw the death penalty for black and white defendants alike, but there are valid legal reasons why this is
so. The latest studies using more sophisticated quasiexperimental methods ( p ropensity s core m atching)
find that white victim cases tend to have many more aggravating and fewer mitigating circumstances
involved regardless of the race of the defendant. It is these " case characteristics" rather than "race
characteristics" that account for the white victim effect.
Those of us who oppose capital punishment can oppose it on moral, financial, or innocence claims where the arguments stand on stronger philosophical and empirical
ground than race-based claims. False claims of anti-black bias in death penalty cases can do great harm to the already
tenuous nation of race relations in this country. A recent Gallup Poll (Saad, 2015) showed that only 30% of Americans are satisfied or somewhat satisfied with race
relations in this country, and telling African-Americans that "Black lives don't matter" in death penalty discourse does not help the situation. Walsh and Ellis (2004)
have called ideology
criminology’s “Achilles’ heel ” retarding the development of its full potential. Ideology forms, shapes,
and colors our concepts of crime, its causes, and what to do about it, as it does with so many other things.
Ideology is a deeply-rooted thing and difficult to confront, but as professionals claiming scientific status it
behooves us to do exactly that.
2NC – Not Racist – AT: Disproportional
Black people are underrepresented on death row and in executions when compared
to black people convicted of murder
There is plentiful evidence of anti-black bias in the administration of the death penalty way into the 20th
Century. Elliot Cramer’s (2009) testimony before the House Select Committee of North Carolina on the death penalty indicated that from
1910 to 1961, 133 blacks and 36 whites were executed in North Carolina. However , he also indicated that since
1984 the situation changed dramatically with 13 blacks and 28 whites being executed in the state. The
evidence now points to black underrepresentation on almost all death rows in the United States.
Blume, Eisenberg and Wells (2004) looked at this disproportionality issue with data from the 31 states that sentenced 10 or
more individuals to death from 1977 through 1999 (5,953 death sentences). They compared the
proportion of convicted black murder offenders in each state with the proportion of black inmates on
death row. They found that in California , Nevada , and Utah , blacks were overrepresented on death row relative
to their proportion of murders in those states, but that in all other 28 states they were underrepresented. In Nevada the
percentage of black murder offenders during that 22-year period was 30.2%, and the percentage of blacks on death row was 33.1%.
In Utah the respective percentages were 8.6% and 10.5, and in California they were 33.8% and 35.3%. African-Americans
are thus overrepresented in proportion to the proportion of murders they commit in these three states. These differences are
miniscule compared to the remaining 28 states , where they were underrepresented to a large degree .
In Tennessee, AfricanAmericans committed 60.4% of murders in the state, but their percentage on death row was 33.3%. In
Mississippi the respective percentages were 77.9% and 59.0%, and in Missouri they were 62.6% and 41.1%. However,
only a tiny fraction of homicides are death eligible, and an even smaller proportion (about 2% to 6%, depending on jurisdiction) actually receive a
death sentence (Berk, Li & Hickman, 2005; Streib, 2003).
It seems from these data that white murderers are proportionately more likely to both receive a death
sentence and to be executed for death-eligible homicide. For instance, an early post-Furman (referring to Furman v.
Georgia that led to a de facto moratorium on capital punishment throughout the United States from 1972 to 1976) study found from 1930
onwards in the Northern states that whites were more likely to receive the death penalty, and that the
discrimination evidenced against blacks in death penalty cases in earlier years in the South disappeared
in later years (Kleck, 1981). Greenfeld and Hinners (1984) looked at 1,405 prisoners under sentence of death and found that 15.8 per
thousand white murderers were sentenced to death versus 11.6 per 1,000 black murders. A large study by Gross
and Mauro (1989) looked at death sentences in over 14,000 cases and found that whites received a death sentence in 26.5% of
the cases involving felony circumstances and in 1.4% of the cases with non-felony circumstances. On
the other hand, 17.2% of blacks convicted in felony circumstances and 0.4% in non-felony circumstances
received a death sentence (calculated by McAdams [1998] from Gross and Mauro’s data). A 2001 U.S. Justice Department (2001) study
of federal death-eligible cases reached a similar conclusion in federal murder cases :
United States Attorneys recommended the death penalty in smaller proportions of cases involving Black
or Hispanic defendants than in those involving White defendants ; the Attorney General's capital case review committee
likewise recommended the death penalty in smaller proportions of involving Black or Hispanic defendants…. In the cases considered by the
Attorney General, the Attorney General decided to seek the death penalty for 38% of the White defendants, 25% of the Black defendants, and
20% of the Hispanic defendants.
Why we should see a disproportional number of white murderers receiving the death penalty
relative to blacks is a question yet to be addressed in any systematic fashion. When African-Americans
were disproportionately charged, convicted, and executed for capital crimes it was relatively easy to
explain in terms of racism. Yet the Southern states—long considered the bastions of racism—are the states in which
blacks are most underrepresented on death row relative to the number of murder they commit. One
explanation is that the Southern states have large African-American populations, and African-
Americans have been shown to be less likely to favor the death penalty than whites (Blume, Eisenberg &
Wells, 2004). With a fair proportion of blacks on a jury, prosecutors may decide not to seek the death penalty, or black
jurors may refuse to convict if the death penalty is on the table, especially if the defendant is black .
Another view is that perhaps prosecutors, judges, and juries are more careful in handling minority cases in an
attempt to convince themselves they are being impartial in their treatment of minorities and are keen to
avoid the dreaded “racist” label .
Their studies are flawed because they compare black death sentences to the
percentage of black people in the general population
Of course, as we know from our first exposure to statistics but sometimes forget, claims
of disproportionality cannot be
evaluated by comparing different things . The percentages of each race executed or on death row must be
compared with the percentage of each race eligible to be included in those sub-populations, and not with
their proportion of the general population. To assess this claim logically we have to compare each race’s
proportion of murderers with its proportion executed or on death row . Social scientists (and the DPIC) are well
aware of this, but rarely make this awareness explicit, and perhaps cannot even acknowledge it to themselves in the Kuhnian (1970) sense of not
“seeing at all.” If
we assess racial differences among the people on death row with the correct target
population in mind, a very different picture emerges.
In 2013, 52.2% of individuals arrested for murder in the United States were AfricanAmericans and 47.8%
were white (FBI, 2014). The FBI places Hispanics and non-Hispanic whites into a single “White” category (93% of Hispanics-Latinos are
defined as white) in its Uniform Crime Reports (UCR), so we cannot make direct black/white comparisons between UCR and DPIC statistics.
The inclusion of Hispanics in the white category inflates white crime figures because Hispanics have a higher crime rate than non-Hispanic
whites (Steffensmeier et al., 2010). Steffensmeier and his colleagues (2010) calculated that when
Hispanics are taken out of the
white category, the black homicide rate averages 12.7 times higher than the white rate. Fox and Levin (2001)
find that African-Americans are overrepresented in every homicide category , ranging from 66.7% of drug-related
homicides to 27.2% of workplace homicides, and the Radford University’s Serial Killer Information Center (Aamodt, 2015) finds that African-
Americans have been 57.9% of serial killers in the U.S. from 2000 to 2014; whites 34%, Hispanics 7.9%, and Asian Americans 0.06%.
With these data in mind, we should formulate a much different perspective on the disproportionality
statements that we see in both the popular media and in scholarly works. A comparison of homicide and execution/death row data led Matt
Robinson (2008) to the conclusion in his work on the death penalty that: “Although
they are overrepresented among death
row populations and executions relative to their share of the U.S. population , blacks are
underrepresented based on their arrests and convictions for murder ” (p. 191). This raises the question of why the
perception is the opposite of the reality.
2NC – Not Racist – AT: White Victim Effect
No white victim effect---explained by adjusting for aggravating and mitigating

factors
Race of Victim Bias: The Data
All studies do indeed show that killers of whites (regardless of the race of the killer) are more likely to
receive the death penalty than killers of blacks . In the Gross and Mauro (1989) data, 28.8% of blacks who killed whites under
felony circumstances received a death sentence versus 6% of blacks who killed other blacks under similar circumstances. Whites who killed
blacks under felony circumstances received a death sentence 18.2% of the time. Thus whites who kill blacks are more likely to receive the death
penalty than blacks who kill blacks, although this must be viewed in light of the fact that whites only commit about 5% of interracial murders
(Robinson, 2008).
Concern about race-of-victim bias motivated the National Institute of Justice (NIJ) to commission three
independent teams to examine the role of race in the application of the death penalty in federal cases . These
data are summed up in a 209 page NIJ report in which Klein, Berk and Hickman (2006, p. xvii) write:
When we look at the raw data and make no adjustment for case characteristics, we find the large race
effects noted previously—namely, a decision to seek the death penalty is more likely to occur when the
defendants are White and when the victims are White. However, these disparities disappear when the
data coded from the AG’s [Attorney General’s] case files are used to adjust for the heinousness of the crime . For instance,
[one of the studies] concluded, “On balance, there seems to be no evidence in these data of systematic racial
effects that apply on the average to the full set of cases we studied .” The other two teams reached the same conclusion.
[One team] found that, with their models, after controlling for the tally of aggravating and mitigating
factors , and district , there was no evidence of a race effect . This was true whether we examined race
of victim alone . . . or race of defendant and the interaction between victim and defendant race.” [the third
study’s author] reported that his “analysis found no evidence of racial bias in either USAO [U.S. Attorney’s
Office] recommendations or the AG decisions to seek the death penalty.
A recent study by Hermant Sharma and his colleagues (2013) looked at all first-degree murder
convictions in Tennessee from 1976 to 2007. They noted that prosecutors sought the death penalty for 76% of white defendants
and 62.6% of black defendants, and that 37.3% of white defendants for whom the death penalty was sought received it versus 23.6% of black
defendants. Prosecutors sought the death penalty in 64% of the cases where the victim was white, and in 33% of the cases where the victim was
black. When controlling for a variety of aggravating and mitigating factors, as well as demographic, and
evidentiary variables, they found that the killing of a law enforcement officer or child, a history of prior
violent offenses, and all evidentiary (scientific, co-perpetrator testimony, confession, and strong eye
witness testimony) variables were by far the strongest predictors of receiving a death sentence for
defendants of any race. Their most important finding was that victim’s race did not play any significant
independent part, but victim’s sex (female) did . The racial make-up of the crime (black offender/white
victim; white offender/white victim, etc.) had no significant independent effect, but race of the defendant
did, with whites being significantly more likely to receive the death penalty than blacks over the 30- year
period.
Quasi-experimental studies are the gold standard and found no effect
More recent studies of the "white victim effect" tend to support the “no effect” side of the debate.
Jennings and his colleagues (2014) looked at every death-eligible case (N = 1,356) prosecuted in North Carolina from 1977 to 2009.
After surveying a number of other studies with contradictory findings (but mostly supporting the white victim effect), they used propensity
score matching (PSM), which is a technique that attempts to overcome a demonstrated effect determined by simply comparing a
particular "treatment"—race of the offender/victim dyads in this case— between those who received a death sentence and those who received a
life-without-thepossibility-of-parole (LWOP) sentence. They do this by matching cases, which is a step beyond introducing statistical controls as
in ordinary least squares regression models. In other words, PSM
allows for a statistical approximation of a quasi-
experimental design by removing systematic differences between cases prior to comparing the outcome
of interest—death versus LWOP.
Jennings and his colleagues (2014) first estimated the white victim effect using traditional statistical (logit regression) models controlling for 50
legal and non-legal factors and found, regardless of offender's race, there was a significant race of victim effect with an odds ratio of 1.393. In
effect, this means that the odds of receiving a death sentence if the victim was white is 1.393 times greater than the odds of a death sentence if the
victim was of any other race. When they looked at black offender/white victim dyads, the odds ratio was 2.834. After
applying PSM to
the data, however, both effects were close to zero ; that is, neither race of victim nor the racial makeup of
offender/victim dyads had any independent effect on whether or not a defendant received the death
penalty. The authors conclude that: The "’White victim effect’ on capital punishment decision-making is better
considered a 'case effect' rather than a 'race effect'" (Jennings et al., 2014, p. 384). In other words, each case is unique
in that it contains a multitude of case characteristics (aggravators and mitigators) and evidentiary qualities
that have to be considered. Given the ability to case-match (albeit, imperfectly), this quasi-experimental
approach is currently the best that we have to tease out any discriminatory effects that may be present
in sentencing.
Their studies are flawed---the Baldus mistake---they conflate odds with probability
The focus has now moved from bias against black defendants to bias against black victims or, conversely,
bias in favor of white victims, particularly white female victims. Thus, when we see fewer blacks
receiving a death sentence and being executed than whites, it is not because of any bias in favor of black
defendants or against white defendants, but rather bias in favor of white victims. Moreover, the charge
made today is that the death penalty is most often sought when the victim is white and the perpetrator is
black.
This victim-centered argument regarding racial prejudice and the death penalty centers on the work of Baldus,
Pulaski, and Woodworth (1983), and has become known as “the Baldus study.” This study was widely cited in McCleskey v. Kemp
(1987) before the United States Supreme Court. McCleskey was a black man convicted of murdering a police officer in Georgia and sentenced to
death who claimed that the death penalty was racially biased in favor of white victims. The Baldus study examined over 2,000 murder cases that
occurred in Georgia during the 1970s in support of McCleskey. The raw numbers in Baldus’ study indicated reverse racial disparity according to
the race of the defendant, with 4% of the black defendants receiving the death penalty and 7% of the white defendants. But the real issue in the
case was the race of the victim. In
denying McCleskey’s claim and writing the majority opinion, Justice Lewis
Powell wrote that: “even after taking account of 39 nonracial variables, defendants charged with killing
white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing
blacks” (cited in Weatherspoon, 1998, p. 193-194). Powell’s statement may be the most quoted line in death penalty
discourse and, as shown with a few samples below, sparked numerous “copycat” citations .
"Professor David Baldus examined sentencing patterns in Georgia in the 1970's. After reviewing over 2500 homicide cases in that state,
controlling for 230 non-racial factors, he concluded that a person accused of killing a white was 4.3 times more likely to be sentenced to death
than a person accused of killing a black." (American Civil Liberties Union, nd).
“[D]efendants charged with killing white victims are 4.3 times as likely to receive a death sentence as defendants charged with killing blacks”
(Bedau, 1997, p. 254).
“They [the Baldus study] found that those accused of killing white victims were four times as likely to be sentenced to death than those of killing
black victims” (Baumgartner, Grigg and Masto, 2015, p. 2).
The "Baldus study demonstrated that a defendant charged with killing a white victim was 4.3 times more likely to receive a death sentence than a
defendant charged with killing a black victim" (Smith & Cohen, 2012, p. 229).
Baldus’ “4.3” is misinterpreted by many people on many occasions as a 4.3 times greater likelihood ,
when it is actually an odds ratio . Arnold Barnett (1994), a math professor at MIT, used the McCleskey
quote (among others unrelated to the death penalty) to illustrate the misuse of stat istic s and “to
discourage fellow citizens from taking a strong position or course of action based solely on a press report”
(p. 38). The problem is one of confusing probabilities with odds, particularly the ratio between the
respective odds represented by their probabilities. We present Barnett's hypothetical example below in
simplified bivariate form to show how Baldus, through no fault of his own, continues to be
misinterpreted, either out of an unfortunate innumeracy, which is forgivable, or purposely, which is not.
Note first that a death sentence was received by 99 defendants (regardless of race) who murdered whites in
extremely aggravated circumstances and by 96 (again, regardless of race) who murdered blacks under similar circumstances.
Translating this into an odds ratio, things get confusing for people lacking statistical training. The odds of some outcome is
calculated by the ratio of the probability of the outcome occurring (p) and the probability of it not
occurring (q), or odds = p/q. A death sentence for a defendant given a white victim is thus obtained by the
probability of a death sentence (99/100 = .99) divided by the probability of not getting a death sentence
(1/100 = .01). The odds of a death sentence given a white victim is thus .99/.01 = 99, or 99:1. The
probability of a death sentence given a black victim is (96/100 = .96), and the probability of not getting a
death sentence is (4/100 = .04). The odds of a death sentence given a black victim in this example is thus .
96/.04 = 24. The odd ratio is the ratio of the odds of receiving a death sentence given a white victim (99)
and the odds of receiving a death sentence given a black victim (24); therefore the odds ratio = 99/24 =
4.125. The odds ratio should be interpreted as “The odds of a defendant who killed a white victim are
4 .125 times greater than the odds of receiving a death for a defendant who killed a black victim.” To
interpret it as a “4.125 more likely to get a death sentence” is simply wrong . The real difference is the
difference between a considerably less egregious 99% and 96%.
They use cherry-picked data without controlling for aggravating factors

Baldus and his colleagues (1983) looked at a number of aggravating and mitigating circumstances and basically
argued that with zero or one aggravating factor in a murder case there was no racial discrimination
regardless of the racial makeup of the victim/offender dyad . Similarly, with multiple aggravating factors
(such as multiple victims, a prior homicide conviction, child victims, torture, and so forth), there was no
discrimination and the risk of a death sentence was high regardless of the racial makeup of the
victim/offender dyad. However, it was at the middle range of aggravating circumstances where the
“correct” sentence was less clear that racial disparities appear, and here is where the notorious “4.3” odds
ratio came from.
In an analysis of the same Georgia data that Baldus relied on, Joseph Katz (2005) examined all
aggravating and mitigating circumstances. In the 1,082 homicide defendant sample, 141 cases involved a white victim and a black
perpetrator. In 67.1% of white victim-black perpetrator (W/B) cases the victim was killed in the course of a robbery compared to 7.4% in black
victim cases, and in 70.6% of the W/B cases the victim was a stranger compared with 9.6% of black victim cases. Katz (2005) also indicated that
“ White victim homicides show a greater percentage of mutilations, execution style murders, tortures,
and beaten victims, features which generally aggravate homicide and increase the likelihood of a death
sentence” (p. 405). Katz (2005) cites a number of other studies finding similar results in 10 different states; that is, once the full array
of aggravating and mitigating factors are considered there is little or no discrimination evident in white
victim-black perpetrator cases that is not accounted for by aggravating circumstances and other legally
relevant variables. Unlike the Baldus study, the Katz (2005) study is hard to find cited anywhere. As Cassell (2008) explains the nature of the
victim-offender relationship: " Black-defendant-kills-white-victim
cases more often involve the murder of a law
enforcement officer, kidnapping and rape, mutilation, execution-style killing, and torture—all
quintessential aggravating factors—than do other combinations " (p. 23-24).
2NC – Not Racist – AT: Lynching
Our studies account for the historical legacy of racism---but allowing history to
overdetermine the present clouds the truth
The Origins of the Conventional Wisdom
The history of race relations in the United States is painfully disturbing . African-Americans have been treated
badly from the time that the first African slaves landed in America in 1619 until relatively recently. In terms of the death penalty, in Virginia,
slaves could be convicted of 66 crimes carrying the death penalty at one point, and free blacks could be executed for rape into the 20th century;
only murder carried the death penalty for whites (Bohm, 2012). Blacks
were subjected to such laws under slavery for over
200 years, and after emancipation they were subjected to the Black Codes, Jim Crow laws,
disenfranchisement, “separate but equal” statutes, literacy tests, vicious stereotypes, and lynch mobs
(Walsh & Hemmens, 2014).
Those who are aware of this history have a tendency to examine modern racial issues in its context, and
find it difficult to imagine that the death penalty can be administered in a racially neutral way and to
take racial bias in capital cases for granted. For others, history is just that— history, and that in this modern age things have
changed dramatically in the United States. Some scholars maintain that death penalty opponents raise the racial issue not out of
any special concern for African-Americans or for racial bias issues, but because they abhor the penalty itself for moral
reasons and use race to center their arguments (McAdams, 1998).
Indeed, members of the U.S. Supreme Court have been guilty of allowing their personal beliefs about the death penalty to guide their rulings in
capital cases. The primary role of the U.S. Supreme Court is to ensure that laws are constitutional, yet some justices are blinded by their ideology
and thus let it dictate their rulings, rather than the law. Consider
the opinions of Justices William Brennan and Thurgood
Marshall, both liberal judges, who served on the Court during the Furman era and remained until the early 1990s. Justice Brennan, in writing a
dissent for McCleskey v. Kemp (1987) (death penalty case discussed at length shortly) was adamant that we should not forget our country’s long
history of racial discrimination when trying to move forward:
In more recent times, we have sought to free ourselves from the burden of this history. Yet it has been scarcely a generation since this Court's first
decision striking down racial segregation, and barely two decades since the legislative prohibition of racial discrimination in major domains of
national life. These have been honorable steps, but we cannot pretend that, in three decades, we have completely escaped the grip of a historical
legacy spanning centuries. Warren McCleskey's evidence confronts us with the subtle and persistent influence of the past. His message is a
disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the
product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the
present.
But it is this very stubbornness,

or holding on to the past , that imprisons us from moving on and blinds us to
accepting any other reality or progress in moving past discriminatory practices. These two justices were
relentless in their quest to vote against just about every single capital case before them, regardless of the
specific issues or merits of a case; this amounted to more than 2,000 capital cases during their Court tenure. Brennan and Marshall
typically joined in their opinions, issuing standard boiler plate language along these lines: “Adhering to our views that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments… we would grant certiorari and vacate the
death sentences in these cases” (Gregg v. Georgia, 1976, ).
2NC – Not Racist – Ev Bias
Their ev is ideologically biased---their political agenda incentivizes mutant statistics

The conventional wisdom in the United States about the death penalty is that it is unremittingly racist in
that African-Americans are disproportionately condemned to death, and that this is particularly true if the victim was white. The death penalty is a
moral issue hotly debated by scholars, lawyers, and politicians, especially when paired with issues such as racial bias in sentencing. We
address the death penalty only to critique the conventional wisdom as it applies to the role of race in its
application, and to illustrate the part that ideology plays in generating and sustaining that wisdom. The conventional wisdom in
academia and the media arose in the 1970s – early 1980s when the data unequivocally supported it, but
since the late 1980s -early 1990s, many studies have questioned it, and some have demonstrated that the
situation has reversed itself. These studies threatening the conventional wisdom comprise a body of research that Thomas Kuhn
(1970) characterized as anomalies that threaten the dominant paradigm. Over time, these anomalies may crystallize into a new paradigm,
but they are stoutly resisted by the defenders of the conventional wisdom embedded in the old, and are "often not seen at
all" (Kuhn, 1970, p. 24).
Ideology is a loaded word that requires care in its usage. Ever since Karl Marx's "false consciousness" it has been used pejoratively to denote
emotional rather than considered reasoning (Murray & Kujundzic, 2005). We conceive of ideology here not as false consciousness in the Marxian
sense (i.e., the blind acceptance by the misled proletariat of the dominant capitalist ideology as opposed to the "correct understanding" of their
oppression and exploitation posited by Marx and Engels)., Rather, we view it as something
embedded in the everyday habits of
thought that shape each person's taken-for-granted "common sense" that may or may not distort reality.
We also view it as mostly something that lies just beneath the conscious level much of the time in the Mannheimian sense (Mannheim, 1936).
The deeply emotional issue of the death penalty as it applies to race engages opposing ideologies in
academic discourse like few others. The arguments among death penalty scholars are more like a lawyer’s
than a scientist’s—designed to support a predetermined end ( win ning the case )— rather than trying to
resolve differences and ambiguities and uncovering a mutually agreed upon “truth.”
Most people in the United States view ideology in terms of a bipolar distinction between the ideologies of "left" and "right"; liberal and
conservative (Jost, 2006). Few people anchor their attitudes toward various issues in terms of an abstract ideology, but we can place almost all of
them somewhere on a left-right ideological continuum. That is, each person tends to adopt consistent positions toward a variety of issues that
results in the crystallization of their opinions, attitudes, and values into an ideology. Ideology
helps us to evaluate the multitude
of issues we encounter through a kind of subconscious "factor analysis," that reduces them to broad
manageable value choices (Federico & Schneider, 2007). Such "clustering" allows for a large degree of attitude
consistency and reduces cognitive dissonance. Attitudes thus tend to crystallize and become relatively
unresponsive to contrary opinions.
We are aware that pigeon-holing all individuals into broad liberal and conservative boxes edits out all qualifiers and ignores all nuances.
Nevertheless, we treat these systems as Weberian ideal types for heuristic purposes. These contrasting systems aspire not only to explain how the
world works, but also (1) what to do to preserve it as it is, or (2) how to change it to what it “should be.” Although this may be overly simplistic,
we cannot deny that we see the same people consistently assemble on opposite sides of the barricade on a host of different “preserve-orchange”
issues such as abortion, illegal immigration, gay marriage, school prayer, school vouchers, the free market, and so on. We see people of different
dispositions being attracted to the values of grassroots movements such as the Tea Party and Occupy Wall Street with polar ideological agendas;
the first wanting to limit government influence on the economy and the other wanting to expand it. Contrasting positions on these and many other
issues define the liberal-conservative divide in the modern United States.
The morality of the death penalty separates liberals and conservatives, but not as tightly as one might
think among the general public. Support for the death penalty is found across the conservative-liberal
continuum, with the latest Gallup Poll showing that 63% of the American public supported it and 33%
opposed it in early 2015. Support is much stronger among conservatives, however, with 75% of self-identified
conservatives supporting it (18% opposed) versus 60% of moderates (34% opposed) and 47% of liberals (50% opposed)
(Gallup Poll, 2015). However, there is an ideological gap between the public at-large and academics, who are
typically thought to be overwhelmingly liberal (Cushman, 2012). Gross and Simmons (2007) show that liberal dominance in
academia is not as overwhelming as many suppose, but liberalism is particularly dominant in the social sciences. Fifty-
eight percent of social scientists identified themselves as liberal (24% as "radicals"), 36.9% as moderate, and
only 4.9% as conservative. Professors in the "harder" (engineering) and "practical" (business; health sciences) disciplines are much less
likely to identify as liberal (Gross and Simmons, 2007).
It is in the social sciences, however, that ideology is most likely to animate a scholar’s research agenda,
including death penalty research . Among social scientists, criminologists and criminal justicians are
most likely to carry out death penalty research, and one study of 770 criminologists/criminal justicians
found that 68.4% identified themselves as liberal or radical , 26.1% as moderate, and only 5.4% as
conservative (Cooper, Walsh & Ellis, 2010). Moreover, Radelet & Laycock (2008) surveyed 77 eminent fellows of the American Society of
Criminology and found that 88.2% did not believe that the death penalty is a deterrent. Radlett and Laycock did not directly ask if they support
the death penalty; only about its deterrent effect. One can support it for retributive reasons while still believing it does not deter, but it is
reasonable to conclude that this is a rough approximation of non-support since retributive justice is something that most criminologists do not
support (Stohr & Walsh, 2016). It is reasonable to suppose, then, that death
penalty discourse is largely dominated by a
liberal strong slant that may lead death penalty researchers, consciously or subconsciously, to slide into
advocacy. The media pick up on the results of such research and trust it, and quote it.
Race, Disproportionality, and Advocacy Research
Charles Manski (2011) writes that reluctance

to consider views contrary to our own often results in claims of
"incredible certitude" for scholarly work congenial to our own views (p. 261). He further asserts that almost all
arguments about social policies with moral content such as the death penalty involve " dueling
certitudes " that conflate "science and advocacy," engage "wishful extrapolation," and results in
" media overreach" (interpreting scholarly research as definitive). The American Society of Criminology
was guilty of "incredible certitude" when it called for the abolition of capital punishment in 1989 based on a
"consensus" that it provides no deterrent effect and is racist in its application. But as Manski (2011) points out:
“ Consensus does not imply truth …" (p. 262). Eminent death penalty researcher Daniel Nagin (2012) adds that “Certitude is easy
to express. Expressing ambiguity but still maintaining clarity is very hard to do…" (p. 4). Nevertheless, a number of statements expressed with
“incredible certitude” about race and the disproportionate application of the death penalty and illustrating “media overreach” are shown below
from various organizations and authors:
“African Americans are disproportionately represented among people condemned to death in the USA .
While they make up 12 percent of the national population, they account for more than 40 percent of the country’s current death row inmates, and
one in three of those executed since 1977” (Amnesty International, 2003).
“Approximately 35% of those executed since 1976 have been black, even though blacks constitute only
12% of the population. The odds of receiving a death sentence are nearly four times higher if the
defendant is black than if he or she is white” (American Civil Liberties Union, nd).
“The national death-row population is roughly 42 percent black, while the U.S. population overall is only 13.6 percent black, according to the
latest census. We’ve long known that the death penalty disproportionately kills people of color” (Matt Ford in The
Atlantic, June, 23rd, 2014).
“Last week was the 35th anniversary of the return of the American death penalty. It remains as racist and as random as
ever” (David Dow in The New York Times, July 8th , 2011).
“[E]ven if it were clear that blacks and non-black defendants were treated fairly and consistently in America’s death-
sentencing system, there are also concerns about the substantial overrepresentation of blacks on death row in
America (13 percent of the nation’s civilian population versus 42 percent of the death row population)” (Acker, Bohm & Lanier, 2014:531).
These claims are true on their face; the statistics are accurate, but the interpretation is bogus, and
constitute examples of what Joel Best (2001, p. 62) call " mutant stat istic s ." Neil Gilbert (1998, p. 102) calls such statements
examples of "advocacy research" that purposely paints the grim mest of pictures to force fence-sitters to
take notice. According to the latest information for the Death Penalty Information Center (DPIC) (2015), African-Americans have been
between 11% and 13% of the U. S. population between 1976 and 2015, and have constituted 35% of the executions. Likewise, blacks comprise
42% of current U.S. death row inmates. Thus, since the resumption of executions in 1976, blacks
have been overrepresented
relative to their proportion of the general population by roughly 3 to 1 in terms of executions and as death
row residents.
As we have seen from the statements above, this
is almost always taken by the media (as well as some academics) as
clear evidence that the death penalty is still biased against AfricanAmericans. The disproportionality
argument is repeated mantra-like without giving any serious thought to the logic behind i t because it produces a
comfortable fit with the ideological views of death penalty opponents, including those of the present authors. We rarely seek to question
something that slots comfortably into our ideology because to do so may lead us to question other positions located under the same umbrella and
produce cognitive dissonance. Indeed, we
unthinkingly accepted this view ourselves until we spent more than two
years researching the death penalty for our book and received abundant feedback from at least 16
reviewers (Hatch & Walsh, 2016).
Opposite findings can be derived from the same data set

Dueling Statisticians
An interesting saying attributed to numerous authors from Mark Twain to Benjamin Disraeli is that thereare three kinds of lies: “lies,
damn lies, and statistics.” Some folks quote this to justify ignorance, but others may quote it as a warning about accepting
tortuous mathematical arguments having to do with the social realm as gospel . Darrell Huff ‘s book How to Lie with
Statistics (1954) has been a classic for over one-half century. Of course, stat istic s don’t lie, but people lie with stat istic s ,
either out of ignorance about what the statistics mean or to consciously or subconsciously support an
agenda. For instance, two statisticians used data from 102 U.S. death penalty deterrence studies from 1975
through 2011 to demonstrate how opposite findings can be derived from the same data set with only
slight changes in assumptions (Gerritzen & Kirchgässner, 2013). They further concluded that ideology (pro- or anti-death
penalty bias) may account for most contradictory findings : “Our results also reinforce the considerations…that
selective perceptions might be the cause for divergent findings. If rather different results can be obtained
under reasonable assumptions, researchers will consider those outcomes as being reliable which
correspond to their pre-conceptions” (p, 24). Opposite findings from the same data sets from Georgia and Maryland are presented
below.
Be inherently skeptical of their certainty
Despite the growing sophistication of our methodological and statistical tools, we still have studies
making conflicting claims with “incredible certitude.” Of course, something may be true in one
jurisdiction but not in another, or true in the same jurisdiction at one time one but not at another time. But
the Georgia and Maryland analyses discussed above were made by separate teams examining the exact
same data and arriving at different conclusions . In death penalty studies involving race we are often
confronted with dueling statisticians just as we see psychiatrists for the state and for the defense making
contrary claims about the same defendant. But that’s the “soft” science of psychiatry; math ematics is
supposed to be the ultimate of dependable objectivity and “truth” ? It is, but we have seen that people
purposely or inadvertently mangle statistical output . Scheidegger (2012) writes: “…many academics who do
research on the death penalty reliably produce results that favor one side , raising a suspicion of partisan
bias ” (p. 161). This is similar to Gerritzen and Kirchgässner’s (2013) contention that ideology , thinly disguised within various
statistical assumptions, plays a huge role in capital punishment discourse.
1NC – Won’t Snowball
Abolishing the death penalty won’t snowball into further criminal justice reform
Carol S. Steiker 20, Henry J. Friendly Professor of Law and Special Advisor for Public Service,
Harvard Law School, Jordan M. Steiker, the Judge Robert M. Parker Endowed Chair in Law and Director
of the Capital Punishment Center at the University of Texas at Austin School of Law, Jan 2020, "The
Rise, Fall, and Afterlife of the Death Penalty in the United States", Annual Review of Criminology,
Volume 3, pp 299-315, https://www.annualreviews.org/doi/abs/10.1146/annurev-criminol-011518-
024721
But pessimisticpossibilities are not confined simply to tempering the hopes of optimists. Abolition of the
death penalty might actually impede (as opposed to only marginally advance) progressive re form in the
larger criminal justice system. The end of capital punishment in the United States would eliminate the
powerful spotlight that capital cases shine on the workings of the criminal justice system . The severity and
irrevocability of death naturally evoke heightened concerns about the possibility of unfairness and miscarriages of justice in capital cases.
Combine these concerns with the high drama of death penalty cases, from initial crime reporting through trial and execution, and the result is
public and media attention on problems in the criminal justice system that might otherwise fly below
the radar. Courts , too, currently give disproportionate consideration to generally applicable legal issues in
the context of capital cases—issues that might not otherwise make it onto their noncapital dockets. Thus,
far from catalyzing reform of the noncapital criminal justice system, the end of the death penalty might
simply make reforms seem less necessary and injustices less dramatic and disturbing (Steiker & Steiker
2016).
It would be ideal if abolition of the American death penalty, should it occur, also engendered advances in
the broader criminal justice system, but there are reasons to be skeptical about the most optimistic
predictions. Consequently, the case for ending the American death penalty must stand or fall on its own
merits . That case is an increasingly powerful one. The United States is exceptional in its retention and use of the death penalty, a position that
puts it at odds with most of the developed, democratic world. American retention appears to be tied in part to its distinctive history of racial
subordination and injustice. And by every measure, the American death penalty is withering, reflecting its increasing tension with contemporary
moral standards and undercutting its ability to serve any penological purpose (such as deterrence or retribution) necessary to justify its retention.
AT: Torture Adv
1NC – Intervention Turn
Turn---Human rights based approaches to international law increases war

Paul Dixon 19, Professor of Politics and International Studies at Kingston University, "‘Endless wars of
altruism’? Human rights, humanitarianism and the Syrian war", The International Journal of Human
Rights, Vol 23, 2019, Issue 5: Special Issue: Beyond 'Rights-Based',
https://www.tandfonline.com/doi/abs/10.1080/13642987.2017.1314644
*RBA = ‘rights-based’ approach
Human ‘rights-based’ approaches
As Miller and Redhead identify, there is no agreement on what is a ‘rights-based’ approach.10 But it is often considered to be the achievement of
human rights as an objective of development and contrasted with a ‘needs-based’ approach which focuses on immediate relief. This has been
associated with a shift from the delivery of services towards advocacy and lobbying.11 As Miller argues, ‘ RBAs
are frequently
praised or critiqued for, or simply identified by, the broad expansiveness they invoke’. They may be so
vaguely defined that they become all things to all people .12 Nonetheless, since the mid-1990s, Miller argues, ‘RBAs
have come to occupy the dominant medium through which human rights discourse and practice have
proliferated across the mainstream development sector (in both the global South and North)’. 13 Those pursuing a ‘rights based
approach’ look to manuals or ‘bibles’ to guide implementation (as if the bible is not open to interpretation). This
discussion of rights is reflected in debates on the influence of RBAs on humanitarian organisations,
leading to their increased ambition and sympathy for military intervention to achieve this.14
‘ Classic humanitarianism’ provided only for the short term and a ‘bed for the night’, whereas the
pursuit of a RBA required deeper, longer-term intervention and social transformation to resolve the
structural problems behind the humanitarian crisis . For some this RBA included ‘good governance as a basic
dimension’ implying a growing ambition towards a much more ambitious (state-building) agenda. This
reflected a wider trend in human rights and humanitarian organisations in the post-Cold War period to take on much more responsibility in the
global South.15 According to Marc DuBois, Executive Director of Médecins Sans Frontières, UK, the human rights-based approach
(HRBA) ‘transforms the wants/needs of people in crisis into obligations demanding a response’ and this
has ‘prompted and reinforced the shift in humanitarian action away from pure delivery of assistance to the
inclusion of protection activities’. 16 Fiona Fox, of CAFOD, reported in 2001 that while agencies were debating the
‘human rights approach to humanitarian aid’ she argued ‘few are willing to brave the moral pressure by
refusing to sign up to the “rights based approach”’. 17 David Rieff complained that the humanitarian movement’s
adoption of an activist human rights-based universalism threatened to capture humanitarianism. 18 The
rights-based approach was presented as challenging the structural causes of suffering and this challenged
the ‘compassionate minimalism inherent in traditional or classical humanitarianism’. Gordon and Donini analyse
‘the challenge of the new humanitarianism’s rights-based approach to the fundamental ethical core of
traditional humanitarianism’. They argue that this rights-based approach ‘risks compromising the universality of aid and
establishing a conditionality that creates a hierarchy of “deserving” and “undeserving” victims … ’. In addition it sets a ‘dangerous
precedent’ for military intervention.19
2NC – Intervention Turn – Turns Racism
Turns the racism advantage----strengthening human rights expands criminal

sentencing
Mattia Pinto 20, PhD Candidate in Law at the LSE, LLM in Law from the University of Bologna, LLM
in Transnational Law, King’s College London, 4/23/20, "Historical Trends of Human Rights Gone
Criminal", LSE Legal Studies Working Paper No. 4/2020, Human Rights Quarterly, Forthcoming,
While the traditional understanding of human rights is to restrain state authority to prevent abuses against the individual, in the last few decades
human rights have been recast in a way that has made criminal law one of the main instruments for
their promotion. Since the 1970s, human rights have allowed penal power to move across borders and,
through the interactions among different actors, norms and law-levels, they have shaped penal policies
around the world. In many countries, the language of victims’ rights , at times combined with human
rights discourse, has become a vehicle for the legitimation of criminal-law measures . The same language has
also played a key role in justifying a new focus of international criminal law on atrocities and human rights bodies’ recourse to criminal justice.
Furthermore, sincethe adoption of the Torture Convention, a number of international instruments adopted
under the aegis of the UN have prescribed criminal-law mechanisms for breaches of human rights
standards. These instruments have been invoked to foster accountability for human rights abuses of past regimes, when many countries around
the world began their transition to democracy at the end of the ColdWar. Finally, human rights bodies have assumed criminal-law obligations
under human rights conventions. In so doing, not only they have complemented the role of international criminal tribunals in enforcing human
rights through criminal justice, but they have also encouraged states to deploy their domestic criminal system to
counter impunity.
Driven by the universality of human rights discourse, criminal-justice projects have expanded over time
and across spaces, mixing domestic and international elements. Victims’ rights advocates, NGOs,
academics, judges, policy-makers, and other state and non-state actors have been involved in this process.
While deployed to protect human rights, penality has been strengthened, defended and justified . In
what may appear as a paradox , rather than moderating state penal policies, the more human rights
have permeated conceptions of justice around the globe, the greater has been the dissemination and
legitimation of punitive responses . The expansion of penality by reference to human rights has been
welcomed almost universally with few critical voices raised and limited serious debate. It has been
normalised. Yet, we have become accustomed to requiring penal action for human rights abuses without
interrogating what is involved in the relationship between two bodies of law, as human rights and
criminal law, that are at once very different but entangled. It is now time to explore this taken-for-granted
relationship to expose the assumptions that lie behind it and the interests it supports.
2NC – Intervention Turn – Turns Torture
Turns the torture advantage---strengthening human rights means more violent

interventions
Mattia Pinto 20, PhD Candidate in Law at the LSE, LLM in Law from the University of Bologna, LLM
in Transnational Law, King’s College London, 4/23/20, "Historical Trends of Human Rights Gone
Criminal", LSE Legal Studies Working Paper No. 4/2020, Human Rights Quarterly, Forthcoming,
The language of human rights is crucial in the enduring relevance of criminal-law mechanisms in
transitional justice projects. The global crisis of the radical Left at the end of the 1970s not only marked
an ideological shift from political ideology and toward human rights ,145 but also an abandonment of
projects of radical social justice in favour of legal-institutional reforms aimed at defending the rights of
individuals.146 State violence has been read in terms of human rights violations that require legalistic responses (especially prosecution and
punishment of past leaders) rather than as an expression of class domination that mandates large-scale redistribution or a profound transformation
of society.147 Legalistic conceptions of rights and justice also dominate the field of transitional justice.148 Human rights are framed as legal
standards that prioritise retributive notion of justice over political calls for forgiveness and reconciliation.149 Conversely, absence
of
punitive measures is often regarded as a failure to uphold legal obligations which, in turn, paves the way
to further violence .150 This approach has had two consequences. First, the prosecution of massive and systemic
human rights abuses has conferred a legitimacy on criminal law that it could have never gained in
addressing common crimes.151 Second, as Karen Engle has noted, “the correspondence between criminal
prosecution and human rights has become so ingrained that expressing opposition to any particular
international prosecution is sometimes seen as anti-human rights ”.152
2NC – Intervention Turn – AT: Link Turn
Their well-intentioned plan will go wrong

What is to prevent moral abstractions like human rights from inducing an absolutist frame of mind which,
in defining all human rights violators as barbarians, legitimizes barbarism?1
The human rights movement , whether wittingly or unwittingly, has increasingly become a force for the
recolonization of the world, in the name of human rights.2
The generation which built the human rights movement focused its attention on the ways in which evil people in evil societies could be identified
well-intentioned people in good societies, can go wrong , can
and restrained. More acute now is how good people,
entrench, support, the very things they have learned to denounce. 3
This article argues that British Liberals Hawks have used human rights and humanitarianism to legitimise righteous or ‘humanitarian war’ in the
post-Cold War era. The
history of human rights is often associated with the left and the claims of the
downtrodden and dispossessed against the powerful state. Since 1989, however, powerful Western states
have invoked human rights and humanitarianism as justifications for war. A ‘rights based’ interpretation
of human rights, it will be argued, has been influential on the humanitarian movement leading from a shift
from more ‘classical humanitarianism’, which is focused on immediate relief of suffering, to a Liberal
Hawk or Liberal Imperialist humanitarianism which is more invasive in seeking to transform
societies in order to alleviate suffering. This Liberal Hawk or ‘Human Rights Left’ narrative has combined with the ‘New
Imperialist Right’ to provide a powerful argument for the effectiveness of military force. 4
Neoconservative intellectuals became aligned with Liberal Hawks in the wake of the Bosnian conflict. Both believe ‘that America
has a
moral responsibility to wield its hegemonic power to end mass violations of human rights in the world’.
The narratives of Liberal Hawks and Neoconservatives converge around the importance of ‘human
rights’, but sometimes to use contrasting means and achieve different goals.5 Intervention in the wars in former Yugoslavia
(1992–95), Kosovo (1999), Afghanistan (2001), Iraq (2003), Libya (2011) and Syria (2011) have been
partly justified by the defence of human rights and to bring humanitarian relief as well as reasons of national interest. This
cross-party approach is important because Western public opinion is so sceptical about sacrificing the
lives of their military in ‘wars of choice’. Bipartisanship can be used to build consensus for war and
stifle elite debate that stimulates public opposition to war. The idea of justifying the Iraq war as an act of
altruism, for example, contributed to bringing the left on board and blunting anti-war opposition .6
Humanitarianism is often understood to mean the relief of immediate or short-term human need and a low political profile is taken to enable
humanitarians to work with governments and other powerful groups to achieve this. In the nineties Liberal Hawks criticised humanitarianism for
resulting in the ‘well-fed dead’ and providing an ‘alibi’ for avoiding more extensive external intervention. By contrast, a
RBA focuses
more on legal discourse and frameworks and ‘typically focuses on the long-term goal of eliminating the
causes of suffering … ’. 7 This approach is more politically aggressive, intending to shame political actors
into changing their behaviour.
Historically, states have tended to justify the resort to war and imperialist adventures by claiming noble
motives. Such is the reluctance of Western publics to support ‘wars of choice’ – particularly after the
debacles in Iraq, Afghanistan and Libya – that a range of often-deceptive arguments is deployed by
Conservative and Liberal Hawks to justify war.8 Hawks calculate that focusing solely on imperialist,
strategic or national interests are unlikely to generate the widespread public support that is thought
important for sustaining military interventions. Humanitarian and human rights arguments for war
widen the appeal of war by providing humanitarian justifications but may also help to conceal the full
implications of ‘humanitarian policies’ from public scrutiny . An important study of the British media’s coverage of the Iraq
invasion 2003 found that the humanitarian warfare ideology was influential particularly on the left: ‘ … the idea
that the war could be interpreted as an act of altruism ensured that anti-war opposition was blunted. ’ 9
Human rights are absolute, leaving no room to de-escalate real-world scenarios

The NGOs that advocate human rights can be ‘purist’ or ‘legalistic’ and may not recognise or care that their absolutist policies have
adverse consequences .20 For example, the advocates of a RBA tend to be on the side of ‘justice’ in the peace and justice debate. This
means that they insist on ‘justice’ regardless of the likely consequences this may have on peace in conflict
situations. ‘Anonymous’ was critical of the ‘human rights community’ for its absolutists demands for justice and retribution during the war in
Yugoslavia (1991–95). In ‘Human Rights in Peace Negotiations’ s/he argued that there was a gap between what could be
negotiated and agreed to by the parties and what was just in the ideal sense:
Thousands of people are dead who should have been alive – because moralists were in quest of the
perfect peace . Unfortunately, a perfect peace can rarely be attained in the aftermath of bloody conflict.
The pursuit of criminals is one thing. Making peace is another.21
Critics have argued that theabstract and non-negotiable principles of r ights- b ased a pproaches have to be
interpreted and cannot be easily applied to real world situations where there may be a pragmatic need
to make difficult or even tragic trade offs between peace/justice or accommodate local diversity in order
to achieve better outcomes. Lars Waldorf has rejected the absolutism of ‘rights based’ initiatives in favour of
those that are ‘ rights-sensitive’ , a middle position between those that are rights-based and rightsblind.22 This also involves
the recognition that rights-based approaches are political that they can be used to oppose or defend Liberal Imperialism. The
‘discourse school’ lacks reverence towards human rights, they are not natural but exist only because people talk about them. They recognise the
power behind human rights discourse and accept this can achieve positive or negative results, ‘[b]ut they do
not believe in human rights and often wish superior projects of emancipation could be imagined and put
into practice’. 23
2NC – Intervention Turn – AT: Can’t Decieve Public
Gets corrupted by politics

This article has emphasised the way that a

Utopian, Idealist or Cosmopolitan Liberal Hawk human rights -based
narrative has influenced the discourse on human rights and humanitarianism and become a justification
for ‘ endless wars of altruism’. Religious and secular advocates of this narrative see human rights as ‘absolute’,
‘objective’ and ‘universal’. Rights are presented as ‘ trumps’ that are ‘non-political’ and rise above
politics. The human rights narrative has influenced humanitarianism and resulted in a shift towards a
more ambitious agenda of democratisation and state-building. The Liberal Hawk interpretation of human
rights and humanitarianism, with its anti-politics ‘rhetoric of no rhetoric ’, it is argued, conceals the deeply
political agenda of the Hawks and their Neoconservative , Conservative and Radical Nationalist/Communalist
allies.
The constructivist or discourse school of human rights draws attention to the
political uses of the ‘rights-based’ approach to
advance a wide range of political agendas. There is no escape from power and politics . Anti-politics
narratives are used to distract attention from the politics of the advocates and claim ‘objectivity’ for their
particular interpretation of human rights and humanitarianism . Clifford Bob’s work skilfully demonstrates the contrasting
political agendas that are advanced using human rights narratives: including the defence and opposition to Liberal Imperialism. Constructivists,
while refusing to venerate human rights would also realise their potential as tools alongside others for emancipation.133 Appeals
to human
rights and humanitarianism should not be used to conceal the real political disagreements that underpin
conflicts and the pursuit of war.
Humanitarian and Human Rights arguments for war complement and provide cover for the less altruistic
strategic, imperialist and national interests that may motivate war. Liberal Hawks advance an anti-
political, absolutist, technocratic, rights-based narrative as a weapon of political warfare. They do this
while in denial that they engage in ‘politics’. Liberal Hawks are using human rights, humanitarian and
genocide prevention arguments to escalate the war in Syria. Jo Cox MP embodies the humanitarian arguments for the
escalation of war on the side of Syrian rebels in the civil war. These humanitarian arguments seem to have been effective
in building support for war, particularly on the left, in the postCold War period .134 The implications of her
arguments are not necessarily immediately apparent to a Western public opinion , which is generally sceptical about
military intervention but might be persuaded to support ‘humanitarian’ action or to defend ‘human rights’
and prevent ‘genocide’. 135 These arguments demonise and criminalise the participants in war with the
clear implication that these wars should be fought until the enemy is defeated when justice can be
imposed. Left-wing Liberal Hawks continue to work with right-wing Neoconservatives and Radical
Nationalists in powerful, militarist coalitions that in spite of setbacks continue to advocate endless
wars of altruism.
1NC – Doesn’t Solve Dignity
Abolishing the death penalty won’t strengthen human rights

Carol S. Steiker 20, Henry J. Friendly Professor of Law and Special Advisor for Public Service,
Harvard Law School, Jordan M. Steiker, the Judge Robert M. Parker Endowed Chair in Law and Director
of the Capital Punishment Center at the University of Texas at Austin School of Law, Jan 2020, "The
Rise, Fall, and Afterlife of the Death Penalty in the United States", Annual Review of Criminology,
Volume 3, pp 299-315, https://www.annualreviews.org/doi/abs/10.1146/annurev-criminol-011518-
024721
Another often expressed hope is that the abolition of the death penalty will bring the United States closer
to its peer countries by expressing acceptance of a human rights framework to govern that issue. On a
formal level, this hope will almost certainly be realized. If nationwide abolition were achieved, the United States would no
longer need to cast a nay vote when the UN General Assembly adopts resolutions calling for a worldwide moratorium on the death penalty, as it
has done seven times since 2007 (Caplan 2016, UN 2018). Furthermore, the structure of punishment within the United States would be less
grossly out of step with international norms, given that the world’s most serious crimes are not punishable by death under international law
(Bessler 2017). As a result, the United States would enjoy less friction with its allies, especially in the context of seeking extradition of suspects
facing serious (formerly capital) charges in American courts (Steiker & Steiker 2016).
However, on a more substantive level, it seems doubtful that American abolition would represent a
deeper acceptance of the norm of respect for human dignity that the international consensus on the
death penalty embodies. Some experts hope that worldwide abolition of the death penalty will mark the success of an increasingly global
postwar international human rights agenda and the general acceptance of the concept of human dignity as part of a new global common law
(Novak 2019). But American abolition, if and when it comes, will likely be rooted in more pragmatic
concerns , which tend to dominate American discourse on the issue (Steiker & Steiker 2016). Extreme criminal
punishments like the death penalty both reflect and reinforce a vision of offenders as less than human (Christie 2014). But even without
capital punishment , the vigorous use of other extremely harsh punishments (like LWOP ) and the
maintenance of degrading conditions of incarceration (such as excessive use of solitary confinement
and tolerance of sexual violence ) stand in the way of a full embrace of human dignity in punishment
practices. And although the death penalty may have facilitated the rise of mass incarceration in the United
States (Scherdin 2014), the converse does not follow: The dismantling of the death penalty will not
immediately or inevitably do much to reverse the massive scale of American imprisonment.
1NC – Trump Thumps
Trump thumps human rights

Michael H Fuchs 19, senior fellow at American Progress, 7/18/19, "Donald Trump is on an Orwellian
mission to redefine human rights", The Guardian,
https://www.theguardian.com/commentisfree/2019/jul/18/trump-pompeo-human-rights-un-orwellian-
mission-redefine
The president of the United States makes racist comments against members of Congress. He puts kids
in cages. Attempts to ban Muslims from entering the United States. Praises dictators .
It has long been abundantly clear that Donald Trump has no respect for human rights . Now, the secretary of
state, Mike Pompeo, wants to build a new intellectual framework to justify the administration’s rollback of
human rights protections.
That is the only way to understand Pompeo’s new Commission on Unalienable Rights. In launching the group Pompeo
explicitly stated that the purpose of the commission is to start from scratch in defining human rights. In a Wall
Street Journal op-ed, Pompeo described part of the commission’s mandate: It will “address basic questions: What are our fundamental freedoms?
Why do we have them? Who or what grants these rights?”
But it seems clear the

intention is to both narrow the definition and application of rights . Pompeo said that the
commission’s goal is to exclude “ad hoc” rights. While he does not elaborate on what “ad hoc” rights are, he
attacks “politicians and
bureaucrats” who “create new rights”, and many of the members of the commission appear to have been
selected in no small part because they also want to roll back human rights.
As journalist Ali Rogin reported, one
commissioner praised Saudi Arabia and defended it over the murder of the
Washington Post journalist Jamal Khashoggi , while another commissioner praised the United Arab Emirates and Turkish
president Recep Tayyip Erdoğan’s autocratic power grab. The commission chair , Mary Ann Glendon, opposes
reproductive rights and marriage equality .
While the Trump administration seeks to redefine human rights, it is clearly ignoring the UN Universal
Declaration of Human Rights ( UDHR ), which itself built on the fundamental freedoms enshrined in
America’s own bill of rights. Developed by a commission composed of members from around the world and chaired by Eleanor
Roosevelt, the declaration was forged in the wake of the second world war and adopted without dissent by the UN general assembly. A truly
historic breakthrough – with countries of all political leanings and cultures backing a common definition of rights – the declaration has been a
global north star ever since.
Of course, there are some very real debates about human rights. One of them revolves around economic and social rights – such as the right to
housing – enshrined in the UDHR and the International Covenant on Economic, Social and Cultural Rights (which the US has not ratified), but
which the US ascribes to only unevenly. And there has long been a debate about the best way to secure human rights at home and abroad. But
the arc of American history has trended towards increased protection for human rights at home and a
growing recognition of supporting human rights around the world.
But the Trump team doesn’t appear to want to participate in these debates in good faith. Trump has a
very clear anti-human rights agenda , and the Trump administration has been actively attempting to
undermine human rights at home and abroad. The administration has worked to roll back protections for LGBTQ
individuals. It has attacked the reproductive rights of women. It has treated – and spoken about – migrants and refugees as less than human. It is
trying to revoke protections for those who want to apply for asylum in the US. It launches dangerous attacks on the media and free speech. Trump
personally defends the North Korean dictator Kim Jong-un’s brutal repression. The list goes on and on and on.
What’s more, the Trump administration wants
to gaslight Americans into believing that this new commission is
necessary because the fight to expand rights protections somehow gives cover to other countries to abuse
the language of human rights to defend their repression . Pompeo speciously said: “Rights claims are often aimed more at
rewarding interest groups and dividing humanity into subgroups. Oppressive regimes like Iran and Cuba have taken advantage of this
cacophonous call for ‘rights’, even pretending to be avatars of freedom.” You read that right: the
secretary of state is blaming
people who work to protect human rights for supposedly helping authoritarian regimes.
And this is the Orwellian goal of the Trump administration. They want everyone to believe that what they are doing is in support of laudable
goals – freedom, democracy, security, choose your own lofty noun. They make racist and antisemitic comments against others while claiming
that they are somehow fighting antisemitism and defending Israel. They tear away children from their parents and place them in cages and claim
that it is all a deterrent to protect those same migrants from the dangers of the journey to the United States.
In his novel about a fictional totalitarian regime, 1984, George Orwell memorably wrote that one of the regime’s mottos is: “War is peace.
Freedom is slavery. Ignorance is strength.” The Trump administration is doing its best to make this kind of gaslighting a reality in America.
Don’t be surprised if one of the conclusions of this new commission is “human rights is repression”.
2NC – Trump Thumps
Trump undermines US human rights credibility

Alexandra Schmitt 19, a policy analyst for human rights, democracy, and development on the National
Security and International Policy team at the Center for American Progress, 12/10/19, "President Trump’s
Alarming Human Rights Agenda at Home and Abroad", Center for American Progress,
https://www.americanprogress.org/issues/security/reports/2019/12/10/478458/president-trumps-alarming-
human-rights-agenda-home-abroad/
The United States’ founding story portrays it as a “city on a hill” and a model for the rest of the world .1
U.S. presidents, from Ronald Reagan to John F. Kennedy, have proclaimed how exceptional the United States is as a country where freedoms are
upheld at home and defended abroad.2 On international Human Rights Day, it is important to consider these
popular notions, realizing
distort a more complicated reality . While the U nited S tates has made important contributions to
that they
human rights around the world, it has also undermined and denied them overseas and at home.
Indeed, conceptions of human rights in the United States tend to separate what happens abroad and what
goes on at home . Consider the Founding Fathers, who enshrined fundamental freedoms in the Bill of Rights but also participated and
profited from slavery; or the fact that the U.S. government has installed and long kept in place laws and policies that disproportionately target its
own vulnerable communities, while at the same time helping to spread rights and democracy in other parts of the world.3
The U nited S tates cannot credibly speak against abuses in other nations if its own policies are
perpetuating human rights abuses abroad or if it is failing to uphold and protect rights at home.
China and Russia , for example, repeatedly try to use U.S. abuses of rights domestically—such as
police brutality and voter suppression —to undermine American efforts to condemn and dissuade
other governments from committing human rights abuses.4 These authoritarian states also point to U.S.
hypocrisy on human rights to advance their own alternative view of human rights—one that often allows
states to violate fundamental freedoms .5
The U nited S tates is a glass house when it comes to human rights

The protection of human rights, then, is a matter of national security. Promoting human rights has been deemed a priority in U.S. national security
strategies and enshrined in U.S. law.6 Before
the Trump administration, the United States supported the
advancement of human rights through funding, engaging in multilateral institutions such as the U.N.
Human Rights Council , and federal legislation such as the Leahy Laws , which prohibit U.S. assistance
to abusive foreign security forces.7 President Donald Trump’s failure to uphold these traditional efforts to
promote human rights is well documented. But what has received less attention is the administration’s
human rights record at home.
The Trump administration’s approach emboldens
opponents of human rights and undermines not only the nation’s
moral standing but also its security. The administration’s policies on religious liberty , reproductive
rights , and issues that affect people of color , immigrants , and indigenous populations have harmed
people at home and around the world.
Billingslea thumps---Trump’s nominee for top diplomat on human rights advocates
for torture
Andrea Prasow 19, Washington Director, HRW, 9/27/19, "Trump’s Human Rights Pick is Torture
Apologist", Human Rights Watch, https://www.hrw.org/news/2019/09/27/trumps-human-rights-pick-
torture-apologist
The Senate Foreign Relations Committee is considering President Donald Trump’s pick to be the nation’s top diplomat on
human rights. The problem is that the nominee, Marshall Billingslea , advocated torture , so-called “enhanced
interrogation,” and other illegal practices as a senior official in the George W. Bush administration, positions he now seeks to obfuscate.
Should Billingslea be confirmed by the U.S. Senate as undersecretary of state for civilian security, human
rights and democracy, he would be tasked with upholding the same international laws that he
disregarded when advocating for the use of torture under Bush.
It would be his job to ensure that U.S. foreign policy aligns with international human rights law, and to
encourage U.S. partners and foes to abide by human rights standards. But how could he carry out these
duties effectively if he can’t, or won’t, see the severity of the human rights violations that he
himself advocated?
Torture is banned by the United Nations Convention against Torture, which the U.S. ratified in 1998, among
other laws. But Billingslea claimed in his confirmation hearing that when he advocated for the use of torture
in 2002, he was following the legal guidance of the Justice and Defense Department lawyers who , under the
Bush administration, sought to provide legal cover for torture and other ill-treatment of detainees in the aftermath of the Sept. 11
attacks.
The treatment of detainees held by the United States in Iraq, Afghanistan, Guantanamo Bay and
elsewhere violated a range of laws, including prohibitions on torture, assault, sexual abuse, kidnapping,
homicide and war crimes. Moreover, the Universal Declaration of Human Rights, frequently cited by Secretary of State Michael
Pompeo, and the International Covenant on Civil and Political Rights, to which the United States is a party, each state that “No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
In 2015, Senators Dianne Feinstein and John McCain jointly proposed an additional anti-torture provision that became a part of U.S. law,
providing uniform measures for interrogation of detainees. Billingslea, in his testimony before the Foreign Relations Committee on Sept. 19,
falsely contended that torture was not illegal until the McCain-Feinstein amendment passed.
Billingslea readily admits he is no expert on interrogation or interrogation methods. And yet, in the early 2000s, he participated in a senior-level
working group tasked with reviewing the legality and effectiveness of certain “enhanced interrogation” methods. He
wrote memos on
interrogation and pressed for harsher practices to be used on detainees at the Guantanamo Bay detention
facility.
Now, Billingslea is trying to excuse his sorry record, saying he simply followed the advice of a select group of lawyers who crafted faulty legal
justifications for the use of torture. But let’s be clear — Billingslea
disregarded dissenting opinions, including those from
the judge advocate generals of every military service within the Bush administration. He could have
joined those dissenting voices but instead chose to cast his lot with those advocating torture .
The United States has never credibly investigated or prosecuted those most responsible for the torture and ill-treatment of detainees, the CIA
secret detention program, or the transfer of detainees to torture abroad in the post 9/11 years. In his 2016 presidential campaign, Trump
advocated bringing back the use of waterboarding and “a hell of a lot worse.”
While he has not, to our knowledge, brought back these techniques, Trump
has nominated a number of individuals who
advocated for them, including Billingslea, to senior positions within the executive branch.
The use of torture and the indefinite detention without trial of dozens of men at Guantanamo has already
corroded the U nited S tates’ standing within the international community. The promotion of the
people responsible for crafting the policy to senior government positions only does more damage.
2NC – Trump Thumps – AT: Movement Checks
Human rights movements influence leadership, not the other way around
Chetan Bhatt 19, Professor of Sociology, London School of Economics, "Human rights activism and
salafi-jihadi violence", The International Journal of Human Rights, Vol 23, 2019, Issue 5: Special Issue:
Beyond 'Rights-Based' Approaches?
A rights-based approach also has to assume the legitimacy of the ‘centrist’ political field – one where the institutions deemed to be accountable
will be shamed or (eventually) punished, or will act reasonably because of the force of normative human rights, political censure or international
sanctions. In the dynamic and unsettled political context described earlier, a
rights-based approach, with its emphasis on technocratic,
legal and state-centric processes is radically undermined when the political legitimacy of a field of accepted,
normative human rights cannot be taken for granted, and where a former liberal human rights consensus is under complex
attack from varied directions – states, movements, and parts of some civil societies. The argument here is not that human rights are under attack
in the way that they always have been, but that the ground of civil and political rights, and the role of institutions that support them, are seen as
illegitimate by sections of the Euro-American right and far-right. A centrist consensus regarding human rights can no longer be assumed in
several Western or non-Western democratic countries. If human rights are one of the ways in which political liberalism was thought to be
‘victorious’, they also demonstrate one way that political liberalism has transformed from an ideological configuration to a bureaucratised,
professionalised arena of law and governance, one subject to contestation precisely because it emerges institutionally in order to govern and
manage populations. (It is partly from this context that the call emerges from the European right and far-right for ‘organic’ liberties that somehow
inhere in belonging to a particular piece of land, while at the same time rejecting human rights as alien, statist impositions by the European
Union).
However, h uman r ights discourse also exists outside of institutions and inspires numerous social and
political movements . Human rights are sources for an independent political idiom that generates many
political interventions by human rights activists that are not necessarily constrained by legal frames,
state institutions or political governance. Even if its legitimacy is contested, the political idiom of
universal rights has to be used – including by those ostensibly opposed to it , and often at precisely the
same moment in which they contest the legitimacy of human rights through other appeals to freedoms,
liberties, or the rule of law.
1NC – AT: Nuclear Terror
Zero risk of nuclear terrorism
Leonard Weiss 15, visiting scholar at the Center for International Security and Cooperation at Stanford
University and member of the National Advisory Board of the Center for Arms Control and Non-
Proliferation, March/April 2015, “On fear and nuclear terrorism,” Bulletin of the Atomic Scientists, Vol.
71, No. 2, p. 75-87
Manufacturing a nuclear weapon. To accomplish this, a terrorist group would have to obtain an appropriate amount of one of the
two most popular materials for nuclear weapons, highly enriched uranium (HEU) or plutonium separated from fuel used in a production
reactor or a power reactor. Weapon-grade plutonium is found in weapon manufacturing facilities in nuclear weapon states and is
very highly protected until it is inserted in a weapon. Reactor-grade plutonium, although still capable of being weaponized, is
less protected, and in that sense is a more attractive target for a terrorist, especially since it has been produced and stored in prodigious
quantities in a number of nuclear weapon states and non-weapon states, particularly Japan.
But terrorist use of plutonium for a nuclear explosive device would require the construction of an implosion
weapon , requiring the fashioning of an appropriate explosive lens of TNT, a notoriously difficult technical
problem. And if a high nuclear yield (much greater than 1 kiloton) is desired, the use of reactor-grade plutonium would require a still more
sophisticated design. Moreover, if the plutonium is only available through chemical separation from some (presumably
stolen) spent fuel rods, additional technical complications present themselves . There is at least one study showing that a
small team of people with the appropriate technical skills and equipment could, in principle, build a plutonium-based nuclear explosive device
(Mark et al., 1986). But evenif one discounts the high probability that the plan would be discovered at some stage
(missing plutonium or spent fuel rods would put the authorities and intelligence operations under high alert), translating
this into a real-
world situation suggests an extremely low probability of technical success. More likely , according to one
well-known weapon designer,4 would be the death of the person or persons in the attempt to build the device.
There is the possibility of an insider threat; in one example, a team of people working at a reactor or reprocessing site could
conspire to steal some material and try to hide the diversion as MUF (materials unaccounted for) within the nuclear safeguards system. But
this scenario would require intimate knowledge of the materials accounting system on which safeguards in that
state are based and adds another layer of complexity to an operation with low probability of success .
2NC – AT: Nuclear Terror
No chance of nuclear terror---the probability is vanishingly small because
plutonium is highly protected and any other kind of weapon is impossible to build---
and the plan would be discovered through investigation or insider threats---that’s
Weiss
They can’t orchestrate complicated plots---their evidence is based on terrorist

statements not empirical capabilities
Stephen M. Walt 16, is the Robert and Renée Belfer professor of international relations at Harvard
University. 9/8/16, “VOICE My Top 5 Foreign-Policy Unicorns — and Why I Want to Kill Them”
http://foreignpolicy.com/2016/09/08/my-top-5-foreign-policy-unicorns-and-why-i-want-to-kill-them/
3. The terrorist mastermind. A close cousin to the nuclear rogue is the terrorist mastermind, busily
concocting elaborate and highly destructive plots to bring the world to its knees . People like Osama bin
Laden and Islamic State leader Abu Bakr al-Baghdadi have made extravagant and dire threats , but the
good news is that they’ve never come close to toppling a foreign government, winning millions of followers,
or threatening our way of life. I don’t deny that some terrorist groups have devised and executed successful assaults — of which the
9/11 attacks were by far the most damaging — but a word like “mastermind” conjures up images of Dr. Evil-style
villains who will inevitably outwit our feeble efforts to stop them and unleash fearsome destruction on an
innocent world.
In fact, as John Mueller and others keep reminding us, the vast majority of contemporary terrorists are
incompetent misfits , and even the very best of them fall well short of evil genius . They can and do stage small-
scale attacks that cause modest amounts of harm, but they have repeatedly shown themselves to be incapable of
orchestrating complicated operations that could actually bring a stable country to its knees. There have been serious terrorist
attacks in Boston; London; Paris; Brussels; Orlando, Florida; and several other places in recent years, for example — yet in each case, these
societies proved resilient, and they are thriving again today. Or just look at New York City, which suffered the worst single attack ever and has
since fully recovered.
Terrorism is a problem, the lives lost to it are an unfortunate tragedy, and those who employ it are
dangerous criminals. A few terrorists are moderately clever; most are not. None rises to the level of a
“mastermind,” and none poses an existential threat . Reporters, pundits, and speechwriters should drop
this term from their lexicon, because this particular animal doesn’t exist. Fortunately.
Conventional attacks better serve their interests, materials are locked down, and
even when they weren’t, nobody bothered to steal them
Cheryl Rofer 15, worked as a chemist at Los Alamos National Laboratory for 35 years, where she
directed programs in environmental remediation and plutonium storage; CEO of Nuclear Diner, an expert
blog on nuclear issues, “But What If The Terrorists Had A Nuclear Bomb?” Nov 18 2015,
https://nucleardiner.wordpress.com/2015/11/18/but-what-if-the-terrorists-had-a-nuclear-bomb/
The probability of terrorists having fission weapons or RDDs is vanishingly small. The consequences could
be enormous in the case of a fission weapon, much less in the case of an RDD. The fear stoked by repeated articles of this type would be the greatest consequence of an RDD.
A number of people at non-governmental organizations (NGOs) dedicated to eliminating nuclear weapons spread fearful images: cities annihilated or paralyzed, tens of thousands dead. I sympathize with the ideal of eliminating
nuclear weapons, but I question whether fear and exaggeration are the way to sell that ideal. I’d rather work from the facts and slog through the difficult actions that will be needed to eliminate nuclear weapons.
Although I share their goal of eliminating nuclear weapons, I cannot ally myself with those groups for a number of reasons. First, they ignore the realities of physically dealing with those weapons taken out of service. Second, they
ignore the international events that drive the perceived need for nuclear weapons. Third, their messaging is all wrong, starting with that fear.
Even if all nuclear nations decided to eliminate nuclear weapons this afternoon, those very physical objects, something like 17,000 of them, would still exist. They contain dangerous materials that need to be handled safely, which
means that physically eliminating them will take some time. The facilities in which they are now decommissioned are aging and overloaded with work. But the NGOs argue for closing down those facilities and against budgets for
improving them.
After Russia’s annexation of Crimea and subsequent rattling of nukes, the US can’t unilaterally say we’re removing nuclear weapons from our arsenal. It’s nice to dream of a bold move that is reciprocated by Russia, but it’s hard to
believe that any of that can happen right now. The downside of such a move by the United States, both domestically and geopolitically, is much to large for any president to take it.
Fear in messaging is manipulative and develops an attitude of helplessness in the people who receive it. It’s realistic to recognize the enormous destructiveness of nuclear weapons and agree that eliminating them from our future
would be a good thing. Fearing that one’s city may be nuked at any time seems less conducive to taking action towards eliminating them. I would like to see the NGOs do some serious studies of what it will take to deal with the
weapons taken out of service and then write and support legislation for those measures. A few successes of that kind might do a lot more to gain supporters.
Focus on Terrorists
focus on terrorist RDDs and real-thing fission weapons doesn’t make much sense in relation to
The
historical terrorist activity. Terrorists want the simplest way to get the greatest effect. Kalashnikovs
and explosive vests worked quite well in Paris. Or boxcutters for 9/11.
From J. M. Berger, an expert on terrorism:
Al Qaeda’s love of elegance was a distraction.
Terrorism is inherently improvisational .
Occasionally terror groups discuss nuclear weapons internally or threaten vague horrors. None I am aware of
has shown any real intention (acquiring materials, for example) of building an RDD or fission weapon .
Jeffrey Lewis and Peter Zimmerman figured up what it would take for a terror group to build a fission weapon: at least 19 people. Since current estimates for the Paris attacks are as high as 20, the number to build a fission weapon is
likely higher, and they would include some very specific kinds of expertise. Learning to handle a gun is much
easier .
Building an RDD would require less than a fission weapon, but it still needs specialized materials. International programs have been
collecting the radioactive sources that would make the best RDDs . Hospitals are turning to accelerators to eliminate the radioactive sources that could be
used. Although recent articles have mentioned depleted (or even enriched) uranium as a possible RDD material,
neither is radioactive enough to be a threat . That’s another problem: reporters often don’t understand what they are writing about and err on the side of sensationalism.
Material for a fission weapon has always been hard to obtain. Immediately after the breakup of the Soviet
Union, there were concerns about the security of materials. The program sponsored by Senators Sam Nunn and
Richard Lugar, authors of the latest article, has locked down much of that material. Most egregiously, chunks of plutonium metal were
scattered across the Semipalatinsk Nuclear Test Site, but they have been cleaned up. During the decade
they lay out on the steppe, nobody picked them up. The area is now patrolled by drones.
Materials are controlled, and no one would buy anything from the black market
Cheryl Rofer 15, worked as a chemist at Los Alamos National Laboratory for 35 years, where she
directed programs in environmental remediation and plutonium storage; CEO of Nuclear Diner, an expert
blog on nuclear issues, “But What If The Terrorists Had A Nuclear Bomb?” Nov 18 2015,
https://nucleardiner.wordpress.com/2015/11/18/but-what-if-the-terrorists-had-a-nuclear-bomb/
Birch and Jeffrey Smith have been working hard on tracking down samples of enriched uranium in
Douglas
Moldova. Their headline writer is good at getting clicks, not so much on representing what is in the article, which contains a fair bit of threat inflation.
The material seized in Moldava was similar to two other seizures –
This article focuses on enriched uranium, from which a fission bomb might be made.
in Bulgaria in May 1999 and in Paris in July 2001. In all three cases, the sellers claimed to have a larger cache of material , which Birch and Smith
say “is considered credible by experts who have studied the three incidents.” Middlemen have been caught and prosecuted, but whoever has whatever cache there may be remains unknown. Analysis of the samples points to the Mayak
Production Association in Ozersk, one of Russia’s major nuclear processing centers, as the origin of the material.
In all three cases, granular uranium metal contained in glass ampoules was packed in a lead container. The ampoules were typical of samples taken from production runs. This is a routine procedure, so that if something is found to be
wrong with material from a run, engineers can go back to the sample and check it out. A vacuum system is necessary for packing the ampoule. The sample is put in a test-tube-shaped container that is necked down at one point. Once
the sample is in the container and the system pumped out, a glassblowing torch is used to seal it at the narrow point. It’s a common technique; I have done it for samples of plant pigments.
The Bulgarian sample was determined to have been packed in late 1993. That, and the requirement for a vacuum system, means that it was probably packed at Mayak, not taken from a larger amount by the smugglers. As Matthew
Bunn was quoted in the article, it’s possible that someone went into the sample storage room and swept a number of ampoules into a briefcase.
Or put one in his pocket every day and took it home. We don’t know how many ampoules were taken, unless there is a classified accounting. Each ampoule contains maybe ten or twenty grams. The 10 kilograms that the article says
are needed for a sophisticated bomb design would require 500 to 1000 of those ampoules. Which would have to be opened, the material melted and machined into shape, and conventional explosives, detonators, and timers would have
to be added very precisely.
Birch and Smith repeat previous descriptions of other seizures, which gives the impression of large amounts of uranium available. They give no basis for believing there is a cache of material. From this article, it is just as believable
that the three ampoules from Mayak are all anyone had.
For sixteen years, there has been no buyer. The man captured in Bulgaria was unsuccessfully seeking a
buyer. For approximately the same amount of time, plutonium was lying around for the picking up – and there were
scavengers pulling metal wire out of the ground at Semipalatinsk. Is it possible that terrorists aren’t that interested in a fission weapon?
Neither a fission weapon nor an RDD has been detonated in the almost two and a half decades since the
Soviet Union broke up. Nor have parts been found in the possession of terrorist groups. Drawings were found
in a l- Q aeda camps in Afghanistan, but they were sketches only , like the ones you might see in a physics student’s imaginative notes.
Birch and Smith make much of unspecified worries on the part of officials quoted anonymously. They also frame a lack of knowledge about Russian nuclear materials in the scariest way possible: We don’t know that there isn’t an
immense stock out there somewhere, just waiting for the right terrorist buyer. That lack of knowledge could equally be framed: we don’t know that any such stock exists. You can make whatever you want out of what you don’t know.
The Nuclear Security Summit
President Obama has prioritized securing nuclear materials and has sponsored Nuclear Security Summits to bring nations together to improve methods of securing those materials. Yesterday’s article, by Sam Nunn, Richard Lugar,
and Des Browne, focuses on those programs. Unfortunately, the article, following Obama’s lead, focuses on the terrorist threat. We can expect to see satellite articles from the NGOs touting their “Be very afraid” message.
It is a good idea to secure sources and other nuclear materials. When I came back in 1998 from seeing how the Soviets had tossed neutron sources around like used popcorn boxes, I tried to push for more attention to the problem. A
few people were working on it at the time, but it was years before funding increased. The Nuclear Security Summit is a good idea to spread the word and share best practices.
all the fissile materials in the

The article vaguely mentions 1,800 metric tons of “weapons-usable materials,” 17% of which are civilian materials and 83% are military. What they are talking about is
world. Alex Wellerstein developed a nice graphic (small version at top) in this article to show how much that is. But some is in reactors, some in bombs, and most of it is in the hands of
governments. Most of it is in forms very difficult to steal. Perhaps informing us of the relative dangers of how much of this total of world fissile material
might be more helpful than implying that there are 1,800 metric tons (“tens of thousands of nuclear weapons”) just lying around waiting for the next terrorist to pick up.
Because of initiatives led by Nunn, Lugar, and Obama, nuclear materials are locked down tighter than
they ever have been , and continuing attention at Nuclear Security Summits helps maintain and improve vigilance. International
police forces have intercepted material that people have attempted to sell, only some of which has been fissile material. There is no
evidence that a terrorist has bought any or made parts of a fission weapon or RDD . Terrorists
typically stick with easily available weapons . Should we do what we can to make sure nuclear materials remain and are made further secure? Certainly. Should those who know
better spread fear? I don’t think so.

Death Penalty Case Neg

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Interpretation---enact means legislative

Violation---courts don’t enact law, they interpret it

To establish by law ; to perform or effect; to decree.

Congress has enacted a new tax law.

Precision is good---using proper terminology matters---it shapes our understanding

Courts can’t enact rules of procedure that affect substantive rights

Courts adopt rules, Congress enacts laws

Courts don’t enact policy---they can’t be the lead player

Reforming prosecutor discretion solves geographic and racial disparities

Race-conscious jury reform is effective

Firing squads are a humane execution method

The fi ring squad strikes me as the most promising. Eight

It is clear that states

Eliminating prosecutorial discretion solves geographic and racial disparities in

Statewide control eliminates disparities between counties

Specialized counsel and funding solves bad defense lawyers

Legal experience eliminates prevents reversals, retrials, and arbitrariness

Race-conscious jury reform can work---our CP learned from past mistakes,

General Rule 37 in the state of Washington was effective---it created an objective

Prosecutorial discretion is key to geographical and racial disparity

2% of the counties in the United States are responsible for

Quality defense representation makes outcomes more fair

Limiting death-eligible offenses reduces the risk of wrongful execution

Further narrowing of death-eligible offenders may be made by revisions to statutory aggravating

The CP reduces wrongful executions

156 persons have been exonerated and released from sentences

While disruptive, the

Reviews solve errors and life-denying delays

Incapacitation saves lives by preventing future murders---recidivism, clemency,

Life without parole is a fate worse than death---turns morality impacts

Solitary confinement is soul killing and turns the torture advantage

Brutalization effect is wrong and not statistically proven

potential offenders are unlikely to remember the number of death sentences

small changes in their assumptions

Furthermore, even with all this harshness, the

It's a double-edged sword---life without parole either exposes fellow inmates to

It is evident that life

Non-death penalties are less revocable than a death sentence---special scrutiny

offender that are even less revocable than a sentence of death.

Retribution is moral and avoids public violence from backlash

Some acts are so egregious they require a higher level of punishment

The death penalty isn’t racist---no disproportionality or white victim effect---their

No white victim effect---explained by adjusting for aggravating and mitigating

They use cherry-picked data without controlling for aggravating factors

But it is this very stubbornness,

Their ev is ideologically biased---their political agenda incentivizes mutant statistics

Charles Manski (2011) writes that reluctance

Opposite findings can be derived from the same data set

Turn---Human rights based approaches to international law increases war

Turns the racism advantage----strengthening human rights expands criminal

Turns the torture advantage---strengthening human rights means more violent

Their well-intentioned plan will go wrong

Human rights are absolute, leaving no room to de-escalate real-world scenarios

Gets corrupted by politics

This article has emphasised the way that a

Abolishing the death penalty won’t strengthen human rights

Trump thumps human rights

But it seems clear the

Trump undermines US human rights credibility

The U nited S tates is a glass house when it comes to human rights

They can’t orchestrate complicated plots---their evidence is based on terrorist

Al Qaeda’s love of elegance was a distraction.