3 Bordenkircher v. Hayes (1978)

Bordenkircher v. Hayes, 434 U.S. 357 (1978)

MR. JUSTICE STEWART delivered the opinion of the Court.

The question in this case is whether the Due Process Clause of the Fourteenth Amendment is violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged.


The respondent, Paul Lewis Hayes, was indicted by a Fayette County, Ky., grand jury on a charge of uttering a forged instrument in the amount of $88.30, an offense then punishable by a term of 2 to 10 years in prison. Ky.Rev.Stat. § 434.130 (1973) (repealed 1975). After arraignment, Hayes, his retained counsel, and the Commonwealth’s Attorney met in the presence of the Clerk of the Court to discuss a possible plea agreement. During these conferences, the prosecutor offered to recommend a sentence of five years in prison if Hayes would plead guilty to the indictment. He also said that, if Hayes did not plead guilty and “save the court the inconvenience and necessity of a trial,” he would return to the grand jury to seek an indictment under the Kentucky Habitual Criminal Act, then Ky.Rev.Stat. § 431.190 (1973) (repealed 1975), which would subject Hayes to a mandatory sentence of life imprisonment by reason of his two prior felony convictions. [Footnote 2] Hayes chose not to plead guilty, and the prosecutor did obtain an indictment charging him under the Habitual Criminal Act. It is not disputed that the recidivist charge was fully justified by the evidence, that the prosecutor was in possession of this evidence at the time of the original indictment, and that Hayes’ refusal to plead guilty to the original charge was what led to his indictment under the habitual criminal statute.

A jury found Hayes guilty on the principal charge of uttering a forged instrument and, in a separate proceeding, further found that he had twice before been convicted of felonies. As required by the habitual offender statute, he was sentenced to a life term in the penitentiary. ***

Plea bargaining flows from “the mutuality of advantage” to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Brady v. United States, supra at 397 U. S. 752. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. 397 U.S. at 397 U. S. 758. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. See  ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.1 (App.Draft 1968);…

While confronting a defendant with the risk of more severe punishment clearly may have a “discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable” — and permissible — “attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” Chaffin v. Stynchcombe, supra, at 412 U. S. 31. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.

It is not disputed here that Hayes was properly chargeable under the recidivist statute, since he had, in fact, been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. [Footnote 8] Within the limits set by the legislature’s constitutionally valid definition of chargeable offenses, “the conscious exercise of some selectivity in enforcement is not, in itself, a federal constitutional violation” so long as “the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Oyler v. Boles, 368 U. S. 448, 368 U. S. 456. To hold that the prosecutor’s desire to induce a guilty plea is an “unjustifiable standard,” which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged. See Blackledge v. Allison, 431 U.S. at 431 U. S. 76.

There is no doubt that the breadth of discretion that our country’s legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse.] And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment….

MR JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting.  [separate dissenting opinion of Justice Powell is omitted]


Then later, in Perry, the Court applied the same principle to prosecutorial conduct where there was a “realistic likelihood of vindictiveness.'” 417 U.S. at 417 U. S. 27. It held that the requirement of Fourteenth Amendment due process prevented a prosecutor’s reindictment of a convicted misdemeanant on a felony charge after the defendant had exercised his right to appeal the misdemeanor conviction and thus to obtain a trial de novo. It noted the prosecution’s “considerable stake” in discouraging the appeal. Ibid.

The Court now says, however, that this concern with vindictiveness is of no import in the present case, despite the difference between five years in prison and a life sentence, because we are here concerned with plea bargaining where there is give-and-take negotiation, and where, it is said, at 434 U. S. 363, “there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.” Yet, in this case, vindictiveness is present to the same extent as it was thought to be in Pearce and in Perry; the prosecutor here admitted, see ante at 434 U. S. 358 n. 1, that the sole reason for the new indictment was to discourage the respondent from exercising his right to a trial. Even had such an admission not been made, when plea negotiations, conducted in the face of the less serious charge under the first indictment, fail, charging by a second indictment a more serious crime for the same conduct creates “a strong inference” of vindictiveness. As then Judge McCree aptly observed, in writing for a unanimous panel of the Sixth Circuit, the prosecutor initially “makes a discretionary determination that the interests of the state are served by not seeking more serious charges.” Hayes v. Cowan, 547 F.2d 42, 44 (1976). I therefore do not understand why, as in Pearce, due process does not require that the prosecution justify its action on some basis other than discouraging respondent from the exercise of his right to a trial.

Prosecutorial vindictiveness, it seems to me, in the present narrow context, is the fact against which the Due Process Clause ought to protect. I perceive little difference between vindictiveness after what the Court describes, ante at 434 U. S. 362, as the exercise of a “legal right to attack his original conviction,” and vindictiveness in the “give-and-take negotiation common in plea bargaining.'” Prosecutorial vindictiveness in any context is still prosecutorial vindictiveness. The Due Process Clause should protect an accused against it, however it asserts itself. The Court of Appeals rightly so held, and I would affirm the judgment.



The majority opinion grants to prosecutors significant discretion to threaten additional charges in the plea bargaining process as long as those charges are justified by the facts in the case.  Prior decisions indicated that prosecutors could not be “vindictive”—which a dictionary defines as a strong or unreasoning desire for revenge.  Here the majority justices and the dissenters disagree about whether the additional of the habitual offender statute, which carried a life sentence, was vindictive when the prosecutor apparently admitted that the sole reason for bringing the additional charge was to pressure the defendant to give up his constitutional right to a trial.  For the dissenters, the prosecutor’s original decision to charge without imposing the habitual offender count indicated that the prosecutor really thought this was the appropriate charge and associated punishment for the crime.  Notice that the concept of a “vindictive” action is very much in the eye of the beholder and not at all clearly defined by the Supreme Court. 


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