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8 Geo. J. L. & Mod. Critical Race Persp. 307 (2016)
The Sanitization of Violence: Exposing the Plea Bargain Regime as a Tool for Mass Injustice

handle is hein.journals/gjmodco8 and id is 317 raw text is: 




      The Sanitization of Violence: Exposing the Plea

        Bargain Regime as a Tool for Mass Injustice*


                                  ALAN J. GOCHA**


                                  INTRODUCTION

   Trial by jury has been a staple of the American legal system since its very concep-
tion.1 The nation's founders, living in a time of political mistrust and fear of power,2
viewed jury trials as essential components of a free society.3 The belief was that a jury
system acts as a counterweight to government oppression by (a) providing ordinary
citizens with a mechanism to limit the imposition of unjust laws and (b) strengthen-
ing democracy through fostering public participation in the judicial process.4 This
sentiment is echoed in both the First Continental Congress's Declaration of Rights
(explicitly calling for the right to a jury trial)5 and the Declaration of Independence
(citing British interference with the colonial jury system amongst its list of griev-
ances).6 Thus, unsurprisingly, a criminal defendant's right to a jury trial was the only
procedural guarantee included in all twelve state constitutions enacted prior to the
Constitutional Convention.' Similarly, when James Madison proposed the Sixth
and Seventh Amendments-guaranteeing the right to a jury trial in criminal and
civil cases, respectively-he was met with overwhelming support.8 Some founders



  * This Essay was the winner of the Georgetown Journal of Law and Modern Critical Race Perspectives first
ever Justin Hansford Student Essay Contest.
  ** I would like to thank Professor Robin West, Parker Cronin, Vijay Kasschau, Alexander Pappas, and A.
Rebecca Williams for their invaluable feedback throughout the writing process. 0 2016, Alan J. Gocha.
  1. See Andrew Guthrie Ferguson, The Jury as Constitutional Identity, 47 U.C. DAVIS L. REv. 1105, 1115
(2014); see also Jon P. McClanahan, The 'True' Right to Trial by Jury: The Founders' Formulation and its
Demise, 111 W. VA. L. REv. 791,792-93 (2009).
  2. See Chhablani, Sanjay K., Disentangling the Sixth Amendments Textual Core, 11 J. CONSTIT. L. 487,
488 (2009).
  3. See McClanahan, supra note 1, at 804-806. Some Founding Fathers considered the right to serve as a
juror more fundamental to their constitutional and political identity than the right to vote. Ferguson, supra
1, at 1108-1109.
  4. See id.
  5. See Albert Alschuler & Andrew G. Deiss, A BriefHistory of the CriminalJury in the United States, 61 U.
CHI. L. REv. 867, 870 (1994).
  6. McClanahan, supra note 1, at 792-93.
  7. See id.
  8. See id. at 804 (during the 1789 Constitutional Convention); Alschuler & Deiss, supra note 5, at 871; see
also Susan R. Klein, The Return of FederalJudicial Discretion in Criminal Sentencing, 39 VAL. U. L. REv. 693,
711 (2005) (The Sixth Amendment jury trial right is meant to ensure the people's 'control in the judiciary,'
and thus a judge has no authority to impose any sentence other than that authorized by a jury finding.). After
revision, both Amendments were ratified by 1791. See U.S. CONST. AMEND. VI & VII. The political and
social importance of juries was also recognized by activists during the African-American and Women's Civil
Rights Movements. See Ferguson, supra note 1, at 1108-1109. Note, even after the Reconstruction Amend-
ments were adopted and as late as the 1950's, many jurisdictions systematically excluded black Americans
from jury service by establishing racially motivated juror qualifications. JOHN TOSH, A MAN'S PLACE:
MASCULINITY AND THE MIDDLE-CLAss HOME IN VICTORIAN ENGLAND (1999).

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