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Prosecutorial Vindictiveness and Plea Bargaining - What Are the Limits? - Bordenkircher v Hayes

NCJ Number
De Paul Law Review Volume: 27 Dated: (Summer 1978) Pages: 1241-1260
G E Wein
Date Published
20 pages
This article criticizes the Supreme Court's 1978 decision in Bordenkircher v. Hayes which held that the due process requirement in prohibiting government vindictiveness is not applicable to post plea bargaining reindictments when defendants insist on their right to plead not guilty.
Although plea bargaining is crucial to the continued existence of the criminal justice system, it was not sanctioned by the Supreme Court until 1971. In the Hayes case, the defendant refused to plea bargain and pleaded not guilty to a forgery charge, even though the prosecutor threatened to reindict him under Kentucky's habitual criminal statute which carried harsher penalties. The prosecutor carried out the threat, and after the defendant was found guilty, he was adjudged a habitual criminal and given the mandatory life sentence. The U.S. Court of Appeals overturned the conviction, but its decision was reversed by the Supreme Court on the basis that a rigid constitutional standard affecting the prosecutor's discretionary decisions would adversely affect the plea bargaining process. A review of case law regarding plea bargaining and governmental vindictiveness emphasizes that vindictiveness cases have been premised on the due process clauses of the 5th and 14th amendments and prior to Hayes were handled as constitutional issues distinct from plea bargaining. A comparison of the facts of the Hayes case accepted by the court of appeals and those stated by the Supreme Court concludes that the latter body incorrectly analyzed this information. Because the prosecutor made a discretionary decision in his initial assessment not to pursue the habitual offender charge, the subsequent contradiction of this decision when the defendant refused to bargain was vindictive. The Supreme Court also misunderstood the appellate court's ruling and consequently was forced into the anomalous situation of either accepting prosecutorial vindictiveness subsequent to plea negotiation failure or totally dismantling the plea bargaining process. Using the rationales of United States v. Jackson and Brady v. United States, an alternative solution is proposed which affirms that plea bargaining is a necessary, albeit chilling, element of the criminal justice system but limits blatant prosecutorial vindictiveness. The Hayes decision is significant because it further insulates plea bargaining from judicial and public review. Over 80 footnotes are included.