One would suspect that most academics teaching crim law had some hands-on experience actually doing crim law. Sure, there will always be the self-proclaimed “experts” who couldn’t find a courthouse without Waze, but most did a stint in a public defender’s or district attorney’s office and at least once in their sheltered lives had to make the call, plea or trial.

Or maybe not, because if that was the case, they wouldn’t need William and Mary law prof Jeffrey Bellin to explain something so obvious that it shouldn’t need to be mentioned. Apparently it does.

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.

Do commentators roundly condemn plea bargaining? Of course, although for very different reasons from practicing lawyers, who are brutally aware that for all the evils of plea bargaining, we would be far worse off without it. But few commentators appreciate that one can view the “trial tax” as the “plea discount,” as well.

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 floor bet at a Las Vegas casino — a solemn spectacle of plea-bargaining roulette.

Did no one in the legal academy realize why lawyers called going to trial “rolling the dice”? Of course it’s uncertainty, although it’s often far more certain that a defendant is going to be convicted because of the video, wires, snitches, confession and eyewitnesses. Have they never prepped that rarest of the rare, a defendant clean enough and sane enough to testify? Have they ever sat through credible independent witness after witness pointing at the defendant and announcing, “He did it”?

But even when the defendant asserts his complete innocence, the choice remains. What are the chances you will win at trial? It’s not the lawyer’s decision. It’s not some academic’s theoretical decision. It’s the decision of the defendant, the human being who will spend night after night in a cell pondering his choice. The defendant will ask whether he’ll win at trial, and we cannot give a good answer because we don’t know. Uncertainty. No one knows what the outcome of a trial will be, unless it’s guilty because the evidence is overwhelming.

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.

Bellin has a point, more so than so many academics who simplistically decry the death of jury trials as if there’s some inherent virtue to going to trial to watch your client get slaughtered and end up sentenced to life plus cancer rather than out in five. If we could reduce the level of uncertainty so that we could say to the defendant with some degree of confidence that he’s got a fighting chance to win, it would make a difference.

Like those who decry the death of jury trials, I want more jury trials. Pretty much every criminal defense lawyer wants to try cases. That’s where the action is. That’s the gunslinger in us. But we put our client ahead of our own fun because that’s our duty, and tell the defendant as honestly as we can what they are facing at trial.

Bellin is right that by identifying uncertainty as a specific pressure point, we can make the effort to address it and improve it. It’s not the only pressure point, as the price of the trial tax, risking a sure thing of a year for the possibility of crapping out at 20 years after trial, is another huge factor in deciding to roll the dice. But uncertainty has been a neglected piece of the puzzle.

Can the degree of uncertainty be reduced (as it obviously can’t be eliminated)? Better discovery would help. Better evidentiary rulings by judges would be huge, particularly on junk science, expert testimony and when applied to the defendant’s cross on collateral wrong and priors.

Are there other ways to reduce needless uncertainty? That’s the question that few have tried to answer. Maybe not, but maybe there are. Maybe it’s worthwhile to pursue this line of inquiry so that we can reduce the number of pleas of convenience and give the innocent, the overcharged and even the guilty against whom the evidence is deficient enough of a fighting chance that they’re willing to roll the dice.