Being Honest About Chance: Mitigating Lafler v. Cooper’s Costs

Abstract

A criminal defendant gives up more than constitutional rights when pleading guilty: he foregoes an opportunity for acquittal.  That acquittal may be improbable, factually unjustified, or legally indefensible, but once realized, is forever immune from review. The Supreme Court in Lafler v. Cooper, however, recognized only the defendant’s constitutional concessions.  Their remedy for when the plea process goes wrong, then, was simple: restore the procedural rights the Defendant had previously waived. But how to account for the acquittal chance the Defendant already redeemed?  By not recognizing the amount of chance inherent in a jury trial, the Court may have changed plea offers from a means to resolve litigation to a handy backup when that litigation goes wrong.