Abstract

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself. Critics’ primary target is the “trial penalty.” But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt. And, as a new wave of “progressive prosecutors” is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity. Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is typically a reflection of these flaws, not their source.

Finding the traditional critiques lacking, this Article highlights uncertainty as the core problem with plea bargaining. It is easy to overlook uncertainty because analysis of plea bargains usually focuses on cases after they have been resolved. Yet from the perspective of someone accused of a crime who is deciding whether to plead guilty, uncertainty is key. And while some uncertainty is inevitable, in many scenarios, plea bargaining turns the defendant’s choice into something resembling a bet at a Las Vegas casino— a solemn spectacle of plea-bargaining roulette.

Identifying uncertainty as plea bargaining’s distinct contribution to American dysfunction is important for two reasons. First, it provides a realistic blueprint for improving the largely unregulated plea-bargaining process—this country’s dominant mechanism for resolving criminal cases. Second, by suggesting that plea bargaining is not the primary source of other important problems, like excess severity or wrongful convictions, the analysis helps to redirect reform efforts targeting those important problems to areas where they may be more effective.

Document Type

Article

Publication Date

2-2023

Publication Information

101 Texas Law Review 539-586 (2023)

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