Most criminal prosecutions are settled without a trial.' The parties to these settlements trade various risks and entitlements: the defendant relinquishes the right to go to trial (along with any chance of acquittal), while the prosecutor gives up the entitlement to seek the highest sentence or pursue the most serious charges possible. The resulting bargains differ predictably from what would have happened had the same cases been taken to trial. Defendants who bargain for a plea serve lower sentences than those who do not. 2 On the other hand, everyone who pleads guilty is, by definition, convicted, while a substantial minority of those who go to trial are acquitted. 3 There is something puzzling about the polarity of contemporary reactions to this practice. Most legal scholars oppose plea bargaining, finding it both inefficient and unjust. 4 Nevertheless, most participants in the plea bargaining

and Gina Paik for excellent research assis tance. 505 1. For a fascinating recent example, see Paul Robinson's comparative study of American criminal codes. Paul H. Robinson et al., The Five Worst (and Five Best) American Criminal Codes, 95 Nw. U. L. REV. 1 (2000). Robinson emphasizes both the comprehensiveness and the clarity of criminal codes' descriptions of prohibited conduct, on the ground that clearly defined crimes send better signals to the public at large than ambigu ously defined crimes. See id. at 6-11; see also Paul H. Robinson, Structuring Criminal Codes to Perform Their Function, 4 BUFF. CRIM. L. REV. 1 (2000) [hereinafter Robinson, Struc turing Criminal Codes] (defending the use of criminal codes to educate the public as to its legal obligations). These criteria make sense only if the codes' descriptions in fact capture the conduct that the state punishes.

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