Full Strat Disclosure #3: Jason Smith’s Sentencing Guidelines NC

This is the third edition of Full Strat Disclosure. The goal of this project is to provide a free place to discuss and learn strategy from some of the best. Coaches and judges will discuss a case they either wrote or coached and detail the strategic thinking behind it. On this edition, Jason Smith will discuss his Sentencing Guidelines NC on the topic “rehabilitation ought to be valued above retribution in the US criminal justice system.”  

To negate is to “prove false,” which means that a) you presume neg because negating has no positive connotation and b) denying the existence of an obligation is sufficient to negate. I value morality, which seeks to guide actions definitionally. Morality has to have binding reasons for action because otherwise it ceases to be normative. Harman[1]:

It is very important to distinguish between (1) the idea that it “ought to be” that a particular [an] agent does something in the sense that it would be desirable, a good thing, if that agent were to do that thing, and (2) the idea that the agent in question “ought to do” that thing, in the sense that the agent has sufficient reasons to do it, reasons which are stronger than reasons he or she has not to do it. The first thought is the thought that there are reasons for wanting the agent to do it, which for us, the thinkers of the thought, the critics, are reasons that we have to want this to happen. The second thought is the thought that there are reasons the agent in question has to do that thing. These are quite independent thoughts. We can suppose an agent has sufficient reasons to do something without supposing we have sufficient reasons to be in [our] favor of his or her doing it, since we might not care one way or the other and be perfectly justified in not caring. Similarly, we can suppose we have reasons to favor that agent’s doing something without supposing the agent has sufficient reasons [for the agent] to do that thing.

This means the aff conflates two senses of ought – reasons why a state of affairs ought to exist are not sufficient for normativity.

JS: I read a few versions of this framework, but I usually opted for the Harman card. I liked it because since it made a definitional claim, not a metaethical claim, it allowed me to bypass most objections to motivational internalism. I extemped reasons why the aff couldn’t link to motivational internalism after Harman, which was strategic because it let me have comparative framework arguments on the NC flow, which 1ARs hardly ever line by line.

In order for an agent to ought to do something, the agent must have something binding it to the decision, merely saying that it would be good for the agent to do something is insufficient. Moreover, without moral bindingness there is no motivation to be moral because the agent can ask “why ought I act” indefinitely, and the only possibly binding answer is that otherwise the agent cannot act. The implication is that morality must constrain agents such that if they cease to follow they cease being an agent.

JS: This argument is a non-definitional argument for internalism that was preclusive, so I could turn it into a reason to reject the AC easily, and it was also good time tradeoff – it took much more valuable 1AR time to answer than it took me to make.

A framework of rule-following solves the gap between motivation and morality for governments because they cease to operate if they do not follow their own rules. Schapiro[2]:

In his early article, “Two Concepts of Rules,” Rawls sets out to limit the scope of the utilitarian principle by arguing that it is inapplicable to actions of a certain type.25 His claim is that actions which fall under practice rules, for example actions governed by the rules of games and social institutions, have a structure which is different from the structure of action presupposed by utilitarianism. Such actions are not, therefore, directly subject to [typical] utilitarian evaluation. Whereas a practice as a whole can be judged in terms of its overall consequences, Rawls claims, a particular move within a practice can only be judged in relation to the practice rules. Rawls’ argument turns on a conceptual point about the relation between the rules of a practice and the cases to which they are applied. Practice rules, he claims, are “logically prior” to particular cases. In a practice there are rules setting up offices, specifying certain forms of action appropriate to various offices, establishing penalties for the breach of rules, and so on. We may think of the rules of a practice as defin[e] offices, moves, and offenses. Now what is meant by saying that the practice is logically prior to particular cases is this: given any rule which specifies a form of action ~a move!, a particular action which would be taken as falling under [a practice] rule given that there is the practice would not be described as that sort of action unless there was the practice.26 Rawls illustrates the logical priority of practice rules over actions with reference to moves in the game of American baseball.27 Outside the “stage-setting” of the game, it is certainly possible to “throw a ball, run, or swing a peculiarly shaped piece of wood.” But it is impossible to “steal base, or strike out, or draw a walk, or make an error, or balk.” 28 Where the rules of baseball are in force, movements come to constitute moves of particular kinds, and conversely in the absence of such rules, actions which might appear to be moves are properly described as mere movements. In this respect, Rawls claims, practice rules differ from another general class of rules called “summary rules.” Summary rules are “rules of thumb.” Their role is to allow us to approximate the results of applying some more precise but perhaps more unwieldy principle to particular cases. As such, summary rules are arrived at by generalizing the results of the prior procedure. They are “reports” of these results, presented as guides for deliberating about what to do in cases which are relevantly similar to those used to generate the reports. Summary rules are therefore logically posterior to the cases to which they apply. For in order to specify a summary rule, it is necessary to generalize over some range of cases, and the relevant descriptions of these cases must be given in advance if generalization over them is to be possible. Whereas summary rules presuppose the existence of a well-defined context of application, the establishment of a practice imposes a new conceptual and normative structure on the context to which they are to apply. In this sense, a practice amounts to “the specification of a new form of activity,” along with a new order of status relations in which that activity makes sense.29 From the point of view of a participant, the establishment of a practice transforms an expanse of grass into “playing field,” bags on the ground into “bases,” and individuals into occupants of determinate “positions.” Universal laws come to hold a priori, for example that “three strikes make an out,” and that “every inning has a top and a bottom.” And within that new order people come to have special powers, such as the power to “strike out,” or to “steal a base.” The salient point for Rawls’ purposes is that there are constitutive constraints on the exercise of these new powers, constraints by which any participant must abide in order to make her movements count as the moves she intends them to be.30 For example, in order for a judge to “punish” a defendant, she must abide by the deliberative constraints of our legal practice. According to those constraints, a punishment can only be meted out as a response to the judgment that a defendant is guilty. As such, if a judge were to decide to punish a person for the sake of promoting overall utility, her action would have to be described as something other than punishment—either as an “offense” of a certain kind, or as a “move” in a rather different practice ~e.g. a practice of “telishment”!. By the same token, Rawls claims, it is not logically possible to “keep a promise” for the reason that doing so would be best on the whole. Promise-keeping is a move in a practice, and it can only be done for reasons which follow from the rules of the institution of promising. Now this characterization of moves in a practice may just seem false, because there appear to be cases where the proper description of an action falling under a practice does not depend in any way upon the whether the agent conforms to deliberative constraints. Suppose, for example, that a tennis player hits a hard shot right at her opponent’s head, and that she does so not out of a desire internal to the practice ~i.e. to play competitively!, but out of a personal, vengeful desire to physically injure the other player. From the point of view of an umpire, the shot will count just as it would if it followed the exact same trajectory but was chosen on the basis of the practice-dependent desire. Similarly if, in her external actions, the utilitarian judge conforms to the procedural rules associated with punishing, she will succeed in doing something which, from a legal point of view, counts as “punishing” the defendant.31 However Rawls’ claim is not about what counts as a move in this external, legalistic sense. His claim is that at a philosophical level, there are deliberative conditions which have to be met in order for an agent to count as “making a move” of a particular kind within a practice. This makes sense, I think, if we read Rawls as relying on an unstated assumption. The assumption is that making a move in a practice is a way of participating in it, a way of engaging in it as a form of activity. Corresponding to this notion of “participation” is an ideal of full participation or full engagement in the activity defined by the practice rules. That ideal is one according to which the agent regards her will, and not merely her external actions, as subject to the action-guiding authority of the practice rules. To fully participate in a practice is to identify oneself and others in terms of the concepts defined by the practice rules, and to regulate oneself in terms of its principles. Thus one who fully participates in a game of tennis relates herself as a player to others conceived as players. By contrast, one who settles a personal score on the court merely uses the practice rules to promote a practice-independent end. In this sense she does not fully participate in the activity defined by the rules. She acts like a player, but not as one.32 If Rawls has this sort of ideal in mind, then his claim is that every action which falls under practice rules is to be regarded as a form of participation, and that the concept of participation is what determines its standard. A participant fully participates, and hence fully “makes a move,” only when she makes the practice rules and their associated concepts determinative of her will. On this interpretation, Rawls’ claim is that a move is some determinate form of participation, and an action’s being a move consists in its being undertaken in conformity with the practice rules under which it falls. Since practice rules are constitute[e] of the actions falling under them, it is not possible to evaluate an action falling under a given practice from a perspective independent of that practice. To do so, Rawls concludes, is to evaluate[s] the action as something it is not.

To clarify, for the government, practice rules imply constraints since the law defines what the government is in the first place. The government would not exist independent of a body of law, so if the government acts outside of legal requirements it ceases to be a government at all, making it impossible to assess what a good government constitutes.

JS: This argument was both a traditional argument for a law framework based in constitutivism and a presumption trigger, which I used as an easy out in the 2NR or a plan B. I made sure to word the argument ambiguously so I could easily deny that it was a trigger in CX to avoid theory.

This renders a culpability analysis moot because regardless of its culpability, a government is motivated by practice rules. Next, this also implies that legal evaluation of government actions is a pre-requisite to asking the contents of a good criminal justice system because a system which does not follow the law is not a system at all.

JS: These two arguments were preempts to aff arguments. The first preemped determinism ACs that were popular on the topic, and the second preempted “you justify the Holocaust”-type arguments.

Thus, the standard is consistency with law. Further prefer the standard for four more reasons. a) People consent to the law through democratic procedures, and consent literally defines right and wrong, for example, if intercourse is rape.

JS: This argument was pure time suck, but it also linked into intuitionism-based frameworks.

1. b) In order for the government to have any obligation, they must have the obligation to fulfill their promises, because otherwise their actions become arbitrary and unpredictable, which prevents the fulfillment of obligations under any ethical theory.

JS: Since I usually spent most of the round on the framework (at the TOC, where this was read, I never answered an aff contention), I added “turns case” implications to my frameworks to give me additional outs in case the aff went heavily for the framework.

1. c) All moral rules have to have a basis in functional characteristics of the actor, because otherwise they base every ought on another ought until they infinitely regress.

JS: This was an extremely bad argument (even by the standards of this case, which included plenty of bad arguments) that was 90% time suck and 10% permissibility trigger to use as a plan B.

1. d) If we could think of morality independent of functional rules, we could argue from “x is a good government” to “x is a government” and “x is a good,” but this doesn’t make sense. Since the resolution concerns the CJS, the only way to assess the system is in relation to its practice rules. e) The concept of government is a legal fiction, i.e. the United States is just a collection of land and people governed by law. The only way to unify these disparate parts is through law.

JS: These arguments were both mostly time sucks, but I also usually extemped preclusion arguments specific to the AC framework after them. All of the additional warrants for the standard almost always went dropped, which made my 2NRs easier. I had an overview with reasons to prefer dropped arguments first prepared, and I read it almost every neg round.

Thus, I contend that current American legal code upholds retribution over rehabilitation. The resolution is a question of punishments; rehabilitation and retribution both may only occur after guilt has been assessed. American sentencing guidelines form the direction on purpose of the criminal justice system in this phase, because they tell the courts what they may and may not do specifically within the phrase of punishment. Thus, relevant law in the U.S. in this area comes from sentencing guidelines. Both the Sentencing Reform Act and subsequent federal sentencing guidelines value retribution over rehabilitation. Hinojosa et al[3]:

In addition to these goals of sentencing reform, the SRA directed the Commission to: “(1) establish sentencing policies and practices for the Federal criminal justice system that—(A) assure the meetingof the purposes of sentencing as set forth in section 3553(a)(2) of Title 18, United States Code.” 28 U.S.C. § 991(b)(1). That section lists the purposes as: (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner[.] Proportionality: Making the Punishment Fit the Crime. The vast majority of the sentencing guidelines, particularly in Chapters Two and Three of the Guidelines Manual, are aimed at assuring that the severity of punishment is proportional to the seriousness of the crime. Each crime is assigned a “base offense level” as a starting point in grading the seriousness of the offense. Guideline adjustments then increase or decrease this score to account for aggravating or mitigating factors that differentiate degrees of harm of different offenses and the varying culpability in each case. The Commission has used a wide varietyofinformation to assess crime seriousness, including survey data on public perceptions of the gravity of different offenses, analysis of various crimes’ economic impacts, and medical and psychological data on the harm caused by drug trafficking, sexual assaults, pollution, and other offenses. Crime control through incapacitation and deterrence. The original Commission recognized crime control as the ultimate objective of the criminal law and of sentencing policy (Guidelines Manual, Historical Introduction, at 2). It also recognized that proportionate punishment can control crime through a deterrent effect. It followed the practice of most state guideline systems (Kauder, et al., 1997) and the federal Parole Commission—which had developed a “Salient Factor Score” to help predict the recidivism risk of various offenders—by increasing the term of imprisonment for offenders who were at a greater risk of recidivism (Hoffman & Beck, 1997). To minimize conflict with the other purposes of punishment, the Commission chose to predict risk using only the offender’s criminal history (Hofer & Allenbaugh, 2003). Chapter Four of the Guidelines Manual provides rules for assigning each offender to a “criminal history category” which, along with the offense level, determines the range of imprisonment and sentencing options available to the judge. As part of the Fifteen-Year Evaluation, the Commission has undertaken a major empirical study of the recidivism of federal offenders. The results of this study, published as Release 1 in the Research Series on the Recidivism of Federal Guideline Offenders, have reconfirmed the validity of the criminal history score as a measure of recidivism risk (USSC, 2004). Further analysis of these data will allow the Commission to refine the criminal history category to make it an even more accurate predictor of risk. Additional research is also underway to assess the deterrent effect of various terms of imprisonment and other aspects of the guidelines’ efforts at crime control. Rehabilitation. The SRA directs judges to consider each defendant’s need for educational and treatment services when imposing sentence. However, the SRA and the guidelines make rehabilitation a lower priority than other sentencing goals (see Hofer & Allenbaugh, 2003). For example, the Commission was directed to ensure that “the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant.” 28 U.S.C. § 994(k). Despite the relatively low priority [is] given [to] rehabilitation, judges are still required to assess a defendant’s need for treatment ortraining when they decide whether to impose any special conditions of probation or supervised release. See USSG §5D1.3(d). (Supervised release has replaced parole as the means to provide offenders with post-imprisonment supervision.)

JS: This was a fairly common argument on the topic, but I chose to use sentencing guidelines instead of the Constitution because less schools had blocks to them. I read a similar NC all topic, and I always made sure to get the cites for any cards I heard that answered it. The best strat against this NC was probably kicking the aff and going for turns because of my heavy investment into framework in the first speech, but since I frontlined all of those articles, I was comfortable grinding it out on the contention level.

Further, only evidence based in status quo federal law is permissible under the standard because a) other contracts are mere ideas for the U.S. federal law in the future and b) since the text specifies “the United States,” the relevant laws come from the federal government, not from external bodies or individual states.

JS: The A point answered the Model Penal Code and the B point answered international law, the Model Penal Code, state codes, and other common turns. They were just contention-level spikes to counter the cards I heard the most frequently.

[1] Harman, Gilbert (Professor of Philosophy at Princeton University). “Human Flourishing, Ethics, and Liberty.” Philosophy and Public Affairs 12.4 (Autumn 1983): p. 307-322.

[2] Schapiro, Tamar (Professor of Philosophy at Stanford University). “Three Conceptions of Action in Moral Theory.” Nous 35.1 (2001): 93-117.

[3] Ricardo H. Hinojosa, Ruben Castillo, William K. Sessions, III, John R. Steer, Michael E. Horowitz, Michael E. O’Neill, Deborah Rhodes, Edward F. Reilly, Jr., Paul J. Hofer, Charles Loeffler, Kevin Blackwell, and Patricia Valentino. Fifteen Years of Guideline Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform. United States Sentencing Commission. November 2004.

Jason Smith debated for four years at West Des Moines Valley High School in Iowa and qualified to the TOC twice. He coaches for Arbor View School in Nevada and now attends the University of Chicago