Lafler's Remedial Uncertainty: Why Prosecutors Can Rest Easy

Darryl K. Brown

University of Virginia School of Law

May 1, 2013

Houston Law Review, Forthcoming
Virginia Public Law and Legal Theory Research Paper No. 2013-06

Some prosecutors are dismayed by the U.S. Supreme Court's decision in Lafler v. Cooper. This very brief (2,000 words) comment responds to a recent version of that concern. Lafler held that a defendant who declined a plea bargain offer due to his attorney's incompetent advice, and was later convicted at trial, must be reoffered the original bargain as the first step in a remedy for denial of his right to effective counsel. Some prosecutors worry that defendants will exploit Lafler to take a shot at trial while still keeping the plea bargain in reserve. In four pages, I explain why they should not worry. Lafler does not guarantee defendants a sentence based on the bargain, only a chance to present that bargain to a trial court that now knows (from the intervening trial) a great deal more about a defendant's case, and which has clear authority, after Lafler, not to vacate the post-trial conviction and sentence. Further, few defendants will find it as easy as Mr. Cooper did to prove that his lawyer provided ineffective representation. And in any case defendants will have to wait years, in prison, after a trial conviction to win a Lafler claim (usually in habeas litigation) and a chance to convince a judge to resentence on the bargain's terms.

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Date posted: May 2, 2013 ; Last revised: June 27, 2013

Suggested Citation

Brown, Darryl K., Lafler's Remedial Uncertainty: Why Prosecutors Can Rest Easy (May 1, 2013). Houston Law Review, Forthcoming; Virginia Public Law and Legal Theory Research Paper No. 2013-06. Available at SSRN: http://ssrn.com/abstract=2259304

Contact Information

Darryl K. Brown (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States

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