The Lafler v. Cooper Court should have chosen the remedy of specific performance of the original plea bargain. The specific performance remedy, long implemented by federal courts in Lafler-like scenarios, and ordered by the district court in Lafler, precisely cures the Lafler injury—the accused regains the ability to accept the original plea offer, except he now has the benefit of effective assistance of counsel. The specific performance remedy, when coupled with the safeguards of the Strickland prongs, poses little risk of abuse, and gives heft to the Sixth Amendment’s guarantee of effective assistance of counsel in the plea bargaining context. If the Court gives constitutional weight to a Lafler violation, it should prescribe an equally weighty remedy.
Matthew T. Ciulla,
Lafler v. Cooper's Remedy: A Weak Response to a Constitutional Violation,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol92/iss6/9