Last year, Stoa’s value debate resolution was “In developing countries, economic growth ought to be prioritized over environmental protection.” Of course, this was a conservative homeschool league, making it very hard to make a case for environmental protection that most judges found persuasive. The association most judges made with environmental protection ended with the word “agency”. Out of all the outrounds I saw that year, I do not believe Negative won a single one.
Stoa debaters had to work and rework their Negative cases to find an approach that resonated with judges. For many, myself included, that meant arguing about the effects of environmental damage on people. The Internet yielded studies on how many die from pollution every year in developing countries (shocking numbers!) and I began to win Negative rounds, arguing that developing countries need to protect life and safeguard their resources for the future.
Debaters had to learn to make a case to a hostile audience to persuade them to reconsider their preconceptions about the resolution and vote for their side. Sound familiar?
Every judge pool has a slight lean toward one side or the other of the resolution. But some are certainly worse than others. From what I have seen so far, NCFCA’s resolution “Rehabilitation ought to be valued above retribution in criminal justice systems” rises to the top of the list.
Fortunately, there are ways to address it. But before discussing how to deal with it, we need to define our terms and quantify the bias problem.
Bias is a Problem
Bias is, again, present in every resolution, but some are certainly worse than others. This year’s resolution is one of the worst offenders because of its great capacity to arouse the strongest opinions from judges. The conflict in this resolution is between philosophies relating to justice and human rights. No wonder then, that judges have such strong opinions about it. Some will see rehabilitation as a duty of the criminal justice system, while others will see it as patronizing and dangerous. These kind of opinions are deeply held, since you aren’t dealing with aliens from Mars, but real people.
These deeply-opinions often correlate in some way to personal experience. About 30% of Americans know someone who is in prison. This personal knowledge about what prison does to people is something that can lead to opinions on the criminal justice system that become almost religious in their importance to the individual. My first cousin, once removed, is in prison right now. From his experience, I have learned a lot about the criminal justice system that has led me to some new beliefs on the topic of rehabilitation vs. retribution. Many judges will be the same way.
On top of this, there is a lot of agreement about these kind of issues in the judging pool. As everyone should know, NCFCA is a conservative league. Recently, a social psychologist named Jonathan Haidt wrote a book entitled The Righteous Mind with the goal of explaining why people disagree on politics and religion. He makes the point that people begin with values, or intuitions about what is right, and reason to conclusions from those values (precisely why debaters establish values and reason from them to determine whether the resolution is true or false). While liberals reason from the basic value of equality or libertarians from individual liberty, conservatives begin with a value of justice. This forms the basis of much conservative policy, including that of the criminal justice system. The link between retribution and justice is fairly intuitive, meaning that a conservative judge who has given a little thought to the resolution will most likely be Negative-biased to some extent. The majority of judges you encounter, then, will likely begin with a bias toward the Negative side of the resolution.
What To Expect
So what exactly does bias mean?
It rarely means that a judge picks up a ballot, reads the resolution, and circles Affirmative. That kind of “judge intervention” is rare. Most of them wait until after the round to circle Affirmative. But still, few judges will vote against you based entirely on their own opinions on the topic. Those ballots do show up (I have gotten quite a few of them) but even a judge pool like the one I outlined above will not serve you such decisions most of the time.
Bias typically looks more like this: One side starts out as more persuasive to the judge. How much more persuasive is up to the judge. But whatever the case may be, it means that one side is going to have to work that much harder to win the judge. Judges in general, try to ignore their bias in the round, but since bias is generally an unconscious preference for one side, this often does not always work out perfectly. As debaters, your job is to change that bias. Ideally, at the end of the round, the judge has been persuaded to change the bias and vote for your side.
So who is going to be biased in this resolution? Everyone, to one degree or another is biased. But some people are more strongly biased than others, and this can to some extent be predicted. While you can’t know for sure that your judge favors retribution, there are some clues that you can utilize to your advantage. (Disclaimer: I would not suggest adapting your entire strategy based on these kind of cues. These are tools for you to use, but they are often wrong. So take these kind of things with a grain of salt.)
NCFCA being a league of homeschoolers, the majority of the parents are conservatives. So your average mom judge is most likely to favor retribution, for the reasons outlined above. I believe the biggest predictor as to which side of the resolution you favor is your political affiliation. Conservatives, due to placing a high value on justice, will tend to favor giving people what they deserve. Liberals, due to a high value on equality and charity, will tend to favor giving people a second chance. Libertarians do not have any kind of uniform opinion on the matter. In general, the parent judging pool will lean toward the Negative side of the resolution.
When community judges walk in, they are more likely to be conservative than liberal, since they are coming to a conservative Christian event, but there are always college students and liberal community judges anyway. Men are more likely to be conservative than women, so they are more likely to value retribution. Similarly, older folks will be more conservative than younger folks, so they will more likely favor the Negative side. But do not take these as absolute rules. You should try your best in every debate round, even if you are Negative and an older man walks in with a “Make America Great Again” hat on.
That being said, how do you deal with biased judges? What can you do to address the deeply personal and strong opinions held by judges on this subject?
How To Address Negative-Biased Judges
Many judges have implicit assumptions they rely on when considering this subject prior to listening to the debate. Acknowledging these and dealing with them will help you address biased judges.
- “Rehabilitation means criminals run free!” — This is a big one. Many judges (and debaters) have a perception of rehabilitation meaning that criminals are simply set free and not punished. This one is comparatively easy to address. Point out that both rehabilitation and retribution are theories of what punishment ought to be, and that the resolution is a question of which philosophy is better, not a question of whether we should punish criminals.
- “Retribution is just because it gives criminals what they deserve.” — This is the basis of most negative cases. It is also very intuitive, so many judges will accept it without much argument. However, justice is a nuanced concept, and defining it has been tricky throughout philosophical history. Plato’s Republic spent a good deal of time on this. Mike C. Marteni also discussed the nuance of justice in his treatise on the purpose of the criminal justice system. N.T. Wright also discussed the idea of justice in his book Surprised by Hope. Pointing out that justice is nuanced can help you persuade judges.
This resolution is very philosophical. Even debaters who want to argue simple utilitarianism subscribe to the philosophy that what the numbers say is most important. So take advantage of this. Decide on an overarching philosophy (and while not using these names) emphasize that throughout the round.
- Utilitarianism– This philosophy tends to be somewhat unpopular within homeschool leagues, since it argues that “the ends justify the means.” But a case can be made that the criminal justice system should focus on the end of protecting society. Within this argument, rehabilitation protects society better than retribution. After justifying this approach, it is relatively easy to claim a “numbers don’t lie” approach. Just run empirics demonstrating that rehabilitation is better than retribution. This kind of argument can be well supported by evidence and present a difficult hurdle to overcome. However, to sell a judge on this argument, you must convince him that the duty to better society outweighs all moral considerations.
- Deontology– This is a philosophy of duty-based ethics. There are certain requirements of morality independent of outcome for both individuals and governments. Depending on how you argue this, you can turn the bias against your opponent. Arguing that there is a moral duty to rehabilitate criminals may backfire, but it may also work. By arguing within this approach you can frame the debate as a conflict of morality rather than a conflict between morality and something immoral.
Appeal to Shared Values
The values driving rehabilitation are most likely shared in some way by your judge. Pointing out the importance of forgiveness or mercy can go a long way toward persuading judges. While using forgiveness as a value in and of itself is not recommended, including subtle hints about the importance of offering help and a second change to forgiveness can help you achieve this effect. Feel free to also point out the importance of forgiveness after justice, and the importance of rehabilitation to this actually occurring.
Similarly, mercy is something that will appeal to your judge. Justice, when always valued, naturally excludes mercy, since justice is definitionally giving someone what they deserve and mercy not doing so. If we were to value absolute justice, there could be no mercy. This kind of claim flies in the face of even the most Negative-biased judge. Surely there can be a place for mercy in the criminal justice system! Pointing out the importance of mercy can help persuade a judge that rehabilitation offers something valuable which retribution does not. Another important tactic here can be to point out silly crimes that according to the Negative, would demand justice, but self-evidently would be a mockery of justice to punish.
How To Address Affirmative-Biased Judges
Affirmative-biased judges will most likely have a number of assumptions about retribution that cause their bias against it.
- “Retribution is just revenge!” — This one is often supported by dictionaries, making it especially difficult to deal with. Last year’s TP resolution about the federal court system helped to perpetuate this notion, as many TP parents came to believe that retribution could not lead a person to change- it was only vengeance. Fortunately, many philosophers have addressed this before you have had to. Distinguishing between retribution and revenge can be as simple as pointing out a couple of distinctions, like retribution is societal, but revenge is individual. Showing the judge that retribution is not revenge can help to set up the importance of whatever framework you use in round.
- “Retribution excludes rehabilitation, which harms society!” — It is worth your time to point out that rehabilitative programs can and do exist under a retributive paradigm. After all, you are debating about which philosophy ought to be valued, not which philosophy ought to exclude the other one. This means that many of the benefits of rehabilitation can come through a retributive system. It then becomes your task to show the judge that retribution should be the main focus of the criminal justice system.
- Utilitarianism– This framework will appeal more to judges who favor rehabilitation. You can argue that retribution is the most utilitarian approach for society as a whole, as many are doing. This means that instead of arguing “Fiat justitia ruat caelum,” you are going for a straight evidence battle with Affirmative. There are a number of approaches to this argument, such as deterrence or the societal importance of justice for peace. An Affirmative-leaning judge will most likely appreciate a discussion of what best improves the society rather than a clash on morality.
- Deontology– This framework can be dangerous with judges who lean Affirmative, since arguing any form of duty-based ethics can seem to them like you are attempting to dodge the bullet of retribution’s failure to address crime in the real world. However, if you can convince a judge that moral considerations are most important, then you can present the case that retribution addresses the critical issues of morality, while rehabilitation undermines the purpose of the criminal justice system. Such a framework can be hard to establish, but serves as a knockout blow when the judge agrees.
Appeal to Shared Values
No matter how biased the judge is, he is most likely not a robot who only considers what best reduces crime/recidivism in the arguments. Unless your judge is literally Adolf Hitler (who fortunately has not shown up in any of my debates so far), he values justice to some extent. This is because people intuitively know that justice is important. Giving people what they deserve is critical to a working society, so your judge can surely understand how important justice is. Such a consideration was critical to C.S. Lewis in arguing against the resolution in “The Humanitarian Theory of Punishment.” Besides this point, justice through retribution is the only response to many crimes, such as money laundering or child pornography. Such considerations can help convince judges to reconsider their perspective on the resolution.
Again, unless the judge is literally Adolf Hitler, he surely sees that people have some inherent value. By discussing how atrociously criminals violate this principle, you can help provoke the judge’s moral outrage and perhaps convince a judge that the value of people demands a response- something that rehabilitation completely ignores. The natural moral demand for a response to crime can help to convince a judge that retribution ought to be the true purpose of the criminal justice system.
No Magic Remedies
Now imagine a debate round in which you are Affirmative. The aforementioned older white man with a “Make America Great Again” hat walks in to judge you. So you do everything. You point out that rehabilitation is punishment, that justice can include more than simply retribution, argue that the only way to make America’s criminal justice system great again (yes, those words) and prevent future crime is to choose rehabilitation, and spend the last minute of your speech in a soliloquy on the importance of mercy and forgiveness. Your opponent is unable to deal with the empirics you bring up, and you successfully refute his points. And after the tournament is over, you pick up your ballots and see that the judge voted against you because “rehabilitation lets criminals run free, but retribution gives justice and stops crime.”
You may want to rail at ballot push for letting that man judge your round, but that won’t do much good. Recognize now that judges are going to make bad decisions, just like last year and the year before, all the way back to the beginnings of competitive debate. You can do everything you should do and judges will still “intervene” for whatever reason. You can’t solve judge bias on your own, even if you do everything right.
But, that isn’t the goal of debate, or rhetoric in general. Rhetoric exists not to make your judge decide to vote for you using whatever means necessary, but to push your judge on to excellence. Your Trump supporter judge may have not listened to you, but that is his decision. You gave him an opportunity to learn. Whether or not he took it is his decision. But you still gave him a chance to understand the issues more. If you are seeking to improve your audience, then you will understand that winning or losing, you are learning, and you are learning something far better than how to win at debate. Judge bias will cause you to lose, but in the long run, seeking to overcome it will lead both you and the judge to seek excellence.
Noah Farley is a junior in high school. He has been debating for three years, primarily in LD and Parli. He participates in both Stoa and NCFCA but doesn’t have a favorite league yet.