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Punishment: Does It Fit the Crime?
Doug Sigel, Northwestern University 1985
- Clarifying Water Policy |
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In the last several years there has been an increasing use of punishment arguments in both college and high school debate. As with most theoretical innovations, there is a vigorous debate over the desirability of that trend. The dispute over the use of punishment arguments has seen more and more college debate judges take explicit positions on the issue in their judging philosophy statements distributed at the National Debate Tournament. 1 High school debaters, this author has observed, also are making an increasing number of punishment arguments. Like it or not, punishment arguments will be made against the average debater and s/he will have to respond to them. In addition, debaters may face abusive debate practices which can make the punishment strategy an attractive one. In short, the punishment issue is one with a great deal of salience in contemporary debate. This article, the second part of a two part series by this author on the punishment issue, examines the arguments against the punishment paradigm. The first part of the series, which appeared in last year's Debater's Research Guide, 2 examined the arguments in favor of the-punishment paradigm. The goal of these two articles is largely a practical one: they aim to aid the debater in successfully arguing either side of the punishment dispute. These articles are not intended to express this author's personal views on the punishment issue. THE PUNISHMENT PARADIGM Before discussing the disadvantages of the punishment paradigm, it seems appropriate at this point to review its basic logic. If this brief review seems unclear then perhaps a careful reading of last year's Debater's Research Guide article would be helpful. The punishment paradigm boils down to the argument that abusive debate practices should be punished with a loss. If a team employs strategies which are unfair to their opponents or which harm the debate process, the penalty should be a loss--even if they win the substantive policy issues in the debate. For example, a negative team who runs conditional counterplans would lose a debate in which the punishment paradigm was successfully argued even if they were able to refute all other affirmative arguments--like competition, topicality, and disadvantages--against those policies. In short, the punishment approach makes the legitimacy of the debate practices of both teams a prior issue to the substantive policy concerns that normally form the basis for judges' decisions. There are three major justifications for punishment. First, voting against bad debate practices deters their future use. Second, the unfair burdens created by tactics like conditional counterplans and incomprehensible delivery requires the judge to restore competitive equity by punishing the team employing those tactics in a round. Third, the judge is an educator and should teach proper academic conduct by nullifying all arguments made by students who abuse the debate process. These three justifications are the most common reasons advanced for punishment but there are probably others. THE DESTRUCTIVE NATURE OF PUNISHMENT Even if the arguments in favor of punishment are true, it seems that there are serious problems with its use in debate. These concerns can arguably lead judges to reject punishment even if they agree that bad debate practices have occurred. When an opposing team makes a punishment argument a worthwhile tactic may be to indict the practical effect of the punishment trend. This article focuses on several objections that can be lodged against making bad debate practices a voting issue.
In practice, punishment debates are incredibly difficult to judge in any systematic manner. At the end of nearly all punishment debates most judges confront the impossible task of sorting through dozens of ad hominem arguments which are little more than unexplained whines. Many judges come away from the experience feeling like both teams are guilty and that it would he desirable to vote against both teams. There are three reasons why the largely rational process of debate judging breaks down under the punishment paradigm. First, it is very difficult to decide when a practice does and does not deserve punishment. Cindy Leiferman pointed to this problem when she noted that "since Sigel's essay on punishment, nearly every issue is a 'voter.'" 3 The punishment tag-line has been thrown out in more and more rounds against the most harmless practices. There is no logical way for a judge to decide whether a tactic is bad enough to cross a threshold which requires punishment. The problem really is that there is only one punishment --a loss--that a judge can impose. Many practices may be questionable but it is difficult to tell when the "death penalty" for the round is warranted. Second, conflicting punishment charges are impossible to resolve. A typical response to punishment arguments will be to charge your accuser with bad practices too. The affirmative may argue for punishing the negative who runs conditional counterplans. One response by the negative may be to indict the affirmative on the grounds that the plan is vague and/ or contains severability provisions. At this point the judge has two guilty parties and has to decide who to punish. There is no logical process to sort out the conflicting whines about who destroyed the debate first. Judges quickly become tired of having to decide rounds like this. No one wants to be in the position of debate disciplinarian. Third, punishment arguments tend to be made without adequate depth. Too often the punishment label is thrown out in the last few seconds of a debater's speech. When punishment arguments are not well developed an intolerable ambiguity results. This author's experience has been that punishment positions are never explicitly developed in a coherent manner. The punishment label has become an annoying time waster rather than an in-depth attempt to clean up debate. Judges are very reluctant to vote on punishment unless it is clearly and persuasively explained and that never seems to happen. Overall, the subjectivity involved in judging punishment debates has made the punishment approach unpopular with judges. A typical reaction was expressed by David Cheshier in his statement that "voting on punishment is always excessive, and my observational experience is that punishment arguments necessarily devolve into rude ad hominem battles." 4 Debaters ought to appeal to this reaction when arguing against punishment arguments. Pure ridicule may be the most effective tactic when your opponent uses the punishment label to impact arguments.
Most judges view the goal of debate as intellectual clash on policy issues. When theoretical concerns become the focus of debates this goal goes unmet. According to this position, a serious disadvantage of the punishment paradigm is that a plethora of theory discussions have occurred, hurting the focus on public policy discussion. The policy oriented judge tends to believe that their commitment to voting on public policy concerns is more important than their commitment to punish bad debate. Arnie Madsen's comments sum up this reaction to punishment:
By expressing a willingness to vote on punishment, judges encourage theory debate at the expense of policy discussion. It is true that abusive debate practices have been a problem. The punishment solution, however, is counterproductive. When one team runs anything slightly creative their opponent immediately whines that it is unfair and uneducational and forces the entire debate away from substance. It seems obvious that a successful strategy against punishment is to argue that voting against bad theory encourages excessive theoretical discussion. If punishment becomes an accepted tactic, teams will nit-pick about violations of fairness and education instead of trying to clash on the issues. The advantages of punishment in terms of stopping bad debate are simply outweighed by the alarming focus away from the policy goals of the activity.
We all would agree that there have been debates where teams have won because of bad debate tactics. One problem has been the death of on-point clash on the merits of affirmative cases. The generic counterplans--anarchy, socialism, world government, etc--along with ridiculous topicality arguments have become standard practice in high school and college debate. At the same time, the punishment strategy is open to abuses which can be very destructive of the activity. For a while the lack of general acceptance of punishment meant that punishment was only run in cases of severely abusive debate practices. In those situations it may have had a therapeutic effect. Today, however, punishment has become over-used. As punishment arguments become a time waster one begins to wonder whether the time we waste on punishment arguments is really worth wasting. A reasonable position can be developed that voting to punish a team sets a bad precedent. Since it is extremely difficult to decide when an abusive practice really justifies punishment, the risk that debaters will exploit punishment as a destructive strategic device seems great. In theory, the punishment argument is the spontaneous response by a team to the abusive debating of their opponents. In practice, however, debaters plan out strategies to "get a link" to punishment because they don't have any substantive answers to the other team's policy arguments. Given the already apparent over-use of punishment arguments by debaters, It seems plausible that voting for them in the future sets a dangerous precedent. The "whine" argument has become the most serious problem in contemporary debate. Too many teams employ arguments like topicality and punishment instead of substantive policy positions because it allows them to avoid research. The activity cannot survive if the "best and the brightest" are plotting ways to make ad hominem attacks on their opponents. Andy Rist's complaint that he "find[s] the punishment paradigm annoying and [that he] usually consider[s] it only formalized whining" 6 is a candid and accurate description of one of the greatest problems in contemporary debate--the punishment paradigm.
One result of the increasing use of punishment arguments has been a chilling of innovative arguments. Bad arguments will lose; there seems to be no reason to go further than that. When the punishment threat hangs over the activity, debaters become unwilling to try new arguments. This argument seems on its face to grant the position that punishment has a deterrent effect on debate. Actually the reverse is true. Teams that run "junk" arguments like world government simply develop elaborate reverse-punishment arguments that allow them to turn punishment attempts. It is this author's experience that teams who are determined' to avoid discussing the merits of the topic are not deterred by punishment at all. In fact, they thrive on it because punishment arguments simply expand the arsenal of "junk" arguments that are available to the non-researched debater. In an age when the activity lacks a coherent theory which is generally accepted, it seems especially unfortunate that we are punishing those who propose innovative theories. Debate ought to serve as a forum for experimenting with sophisticated decision-making models. Instead, too many debates consist of an incomprehensible exchange over who destroyed, the activity first. What the debate activity really needs, this author believes, is a fresh approach to public argument which will excite students and interest them again in substantive discussion of significant policy disputes. As we divert our preparation time and debate speeches to destructive battles over punishment we move further and further away from the theoretical reinvigoration that academic debate needs to survive. THE FALSE ASSUMPTIONS MADE BY PUNISHMENT ARGUMENTS The above arguments outline a good case for consigning punishment to the dustbin of debate theory. In addition, however, it seems important to debate the punishment arguments on their own ground. Are the assumptions behind the punishment theory really valid? This section will refute the three major justifications--deterrence, fairness, education-offered in favor of punishment.
Advocates of punishment may argue that voting against a bad debate tactic in one round deters its future use in other rounds. There are two reasons why this argument is wrong. First, punishment arguments do not deter bad debate. It has already been argued that sophisticated debaters who run "junk" arguments " will eagerly latch onto punishment as another way to avoid research. Some elaboration seems in order. Suppose you and your partner plan on running a world government counterplan nearly every round. Your response to the threat of punishment will be to write detailed briefs ) defending the legitimacy of your counterplan. When another team initiates a punishment argument you will "turn" the argument and make it a reverse voting issue. When the 1AR drops numbers 11, 21 and 26 because of time pressure you will likely win the debate. It seems clear that for teams that systematically abuse the activity punishment isn't really a problem. At worst they can muddle up the issue and at best they can win on reverse-punishment. Second, losing bad arguments is normally: an adequate disincentive. Most competitive debaters stop using arguments that don't win. It is not at all clear that a ridiculous hypothetical counterplan, for example, deserves more than a few intelligent presses to be defeated. Why should this be a reason to give up " the discussion of policy issues and devolve the round into punishment? Punishing a team for running a bad argument seems to be overkill. Demonstrating argumentative stupidity through excellence of rebuttal is a far more constructive and efficient time investment than arguing, punishment."
Fairness concerns can frequently be cited to justify punishment. The introduction of a particular strategy into a particular debate is so unfair to one team that the only remedy can be punishment. There are two problems with the fairness rationale for punishment. First, fairness is almost entirely situational. The fairness argument in debate is always made when a team can't think of anything better to say. A new case is going to place an unfair burden on any negative team. If the affirmative can talk faster than the negative an unfair situation exists. If the negative has four really good counterplans against a case an unfair situation exists. In debate there is no objective way to tell what is and isn't fair because the activity by nature favors those participants who stay one step ahead of anyone else. It is time that debaters attack arguments on a substantive level. If this year's water topic is too broad then the negative has no right to whine about fairness when affirmatives take advantage of that breadth in case selection. If the negative has the technical skill to extend a plethora of arguments then the affirmative has no right to whine that there is an unfair proliferation of issues. Almost any argument or tactic that is unfair in one round when a team lacks preparation for it becomes fair once opponents have devised substantive responses. Second, there is no good reason why fairness itself is a voting issue. If a tactic is unfair it perhaps should not be allowed. To punish a team for employing that tactic independent of the outcome of other issues seems excessive. If it is unfair to amend the affirmative plan the judge should reject plan amendments and evaluate the debate based on the plan originally presented in the 1AC. All debaters seek to get the most favorable set of theoretical decision rules possible. If the judge rejects one team's decision rules s/he must impose another set of procedures to decide the round's outcome. There is no reason to punish the team for trying to maximize their own advantages.
Another argument for punishment is grounded in educational concerns the judge might have. The role of the judge is to educate students about proper conduct in debate rounds and this requires punishment when abuses occur. There are three ways to refute this type of claim. First, the practical impact of punishment arguments is to destroy education. The punish tactic is so subjective and open to abuse, as we have seen earlier, that it hurts the activity. The advocate of punishment isn't really concerned about education anyway. S/he is just whining about arguments s/he can't answer. Second, punishment arguments confuse the role of a debate judge. The debate judge is evaluating public policy argument. S/he is not an umpire who hands out penalties for rule violators. The arguments in a debate about theory are important because they tell the judge how to evaluate the policy arguments. The theoretical concerns have no independent value. If hypothesis testing is bad then a judge shouldn't decide based on that paradigm, To punish a team for advocating hypothesis testing is to turn a debate judge into an umpire. The notion that the debate process is a forum for punishment has crept into the activity with little critical scrutiny. It is ridiculous that a team is able to win a debate by whining about the practices of their opponents. Debate is educational because it trains students in oral argument and it is the job of the judge to evaluate who better argues the policy issues in a debate. Third, punishment arguments create an esoteric activity with little real world applicability. Debate is already charged with being too remote and elitist. The kinds of theory debates that will probably evolve if punishment arguments continue to be accepted are mind boggling. Why not turn the impacts of punishment arguments? Why is destroying debate bad? Why is education good? Why is fairness ethically justified? We may see the day when a team argues that the destruction bf debate is good because it hurts democracy. And democracy is bad because it hurts the transition to a new form of ecological organization. Or maybe we will see debaters arguing studies that deterrence is counterproductive. This means that the way to stop bad debate is to vote for the team that runs the worst arguments. These examples seem absurd. However, the "good is bad" arguments that are common today-that individual rights are bad, that nuclear war is good, that starvation is good--appear equally absurd to anyone not involved in debate. The recent development of arguments that topicality is not a voting issue empirically proves that stupid theory arguments can get totally out of control. THE ALTERNATIVES TO PUNISHMENT In our intellectual backlash against the punishment paradigm it is easy to forget that it does respond to a real problem in debate. If we reject punishment as a solution to abusive debaters we need some other way to deal with objectionable debate practices. Those of us who see debate as more than a game want to focus on substantive clash rather than strategic tricks and traps. How do we do this in the absence of punishment? There are basically two alternatives to punishment that the debate community can adopt. One of these, "Rowlandism,"is a narrow minded and destructive reaction. The other, "judicial skepticism ," is a realistic and satisfactory process which minimizes abusive tactics while still encouraging innovation. "Rowlandism" One response to bad debate arguments is to ban them from debate. One judge, Robin Rowland, takes the position that "certain theory arguments threaten debate" so he distributes a judging philosophy before each round he judges to "ban them. " 7 His philosophy lists 10 practices that he will never accept, even if they are unchallenged in the round. This "ten commandments" strategy may become increasingly popular as judges become tired of theory debates. One attractive feature of "Rowlandism" is its ability to end punishment arguments. There is no need to waste time arguing punishment if you know a judge will automatically intervene into the round. Abusive arguments will not be run in front of a judge if s/he gets the reputation for actually enforcing the list of prohibitions. "Rowlandism" is not the answer. First, it stifles innovation and creativity. Debate is an evolving activity and one has to be incredibly closed minded and arrogant to destroy the activity's growth. For academic freedom to exist we all have to be willing to listen to minority viewpoints. We would still be debating under a stock issues model if judges in earlier decades had adopted Rowland's approach. The theoretical breakthrough that may revitalize debate may never get a fair hearing if "Rowlandism" spreads. "Rowlandism" destroys the intellectual foundations of the activity. Students enjoy debate because of the intellectual challenge created by the competitive format. Bright minds meet other bright minds in a clash of ideas. Success comes to those who are the most creative and innovative. The narrow mindset that prevents real world decision-makers from solving most public problems can be transcended in the intellectual freedom offered by debate. "Rowlandism" is a desperate attempt to thwart spontaneous change, to stagnate the activity in old ideas. The unpredictability and the convulsive changes that have occurred in debate frighten Rowland. For most participants, however, they are the most attractive and exciting elements of the debate process. Second, "Rowlandism" is an over-reaction to the problems of abusive debate practices. There is some value to theory arguments in debate. Students need to be able to clash on theory and substance. Students gain a huge amount of abstract knowledge when they are forced to clash on theoretical issues. What we need is a procedure which confines theory debate to argument over the evaluation of substantive issues. Judicial Skepticism A mature view of judicial intervention into the debate does yield a constructive solution, "judicial skepticism." It is true that many innovations in debate are bad. Many arguments are shallow. Many practices are not innovations but "cheap shots" which sacrifice clash for winning. Judges need to be skeptical about unexplained or illogical theory arguments. A rigorous presumption needs to be placed against positions which are run for their strategic value. When a team refrains from clashing on the substantive issues the skeptical faculties of a judge must go into action. Roger Solt has described how he operationalizes his version of "judicial skepticism" ...overly tabula rasa standards produce an excessively technical and esoteric version of debate, excessive judge intervention implies a closemindedness to new ideas and raises Questions of competitive fairness. The key practical question in debate judging is what degree of judge intervention is appropriate...Theoretical positions which I regard as fundamentally misguided...must be supported with a significantly larger preponderance of arguments to gain my adherence than do theory positions I regard more sympathetically.8 If judges would display a bit of this kind of common sense the problems that punishment seeks to solve could be substantially reduced. The point is not that judges should intervene against well-reasoned arguments that they dislike. Rather, "judicial skepticism" establishes a high acceptance threshold before a judge's own preferences are overcome. When that happens excellence of rebuttal will effectively defeat bad theory in most rounds. It is this author's belief that nearly all judges will give a debater the benefit of the doubt in a theory debate if s/he appeals to "judicial skepticism." Most judges, for example, dislike counterwarrants. They will usually be willing to reject them if there are any well explained objections. The most efficient response to counterwarrants is not punishment: a few intelligent arguments will be more than adequate to defeat counterwarrants without resorting to punishment. "Judicial skepticism" is superior to "Rowlandism" because it still encourages innovation and creativity. Unconventional ideas are not banned from debate. They do need to overcome the skepticism that human beings properly experience when faced with unfamiliar ideas. "Rowlandism" is really an irresponsible way to judge debates because it frees the critic from the burden of evaluating new ideas. CONCLUSION The punishment paradigm is not the answer to bad debate. This article has outlined several problems that result from its use in contemporary debate. The assumptions of punishment are also open to serious question. Hopefully debaters can draw upon this article in formulating effective responses to punishment arguments. In addition, it is possible that debaters will decide that perhaps there are non-punishment approaches to deal with bad debate. Finally, the flaws in the "Rowlandism" approach to judging make "judicial skepticism" the best way to deal with bad debate from a judging perspective. This article and last year's article have both sought to stimulate theoretical discussion about debate. Only by original thinking can we improve debate. Only by being open minded can we find the truth. That is a heavy responsibility for debaters and judges to bear. But no one ever said debate was easy. There are no ten commandments to tell us how to debate and judge. That's what makes this activity so fun. NOTES
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