Bordenkircher v. Hayes, No. 76-1334

CourtUnited States Supreme Court
Writing for the CourtSTEWART
Citation434 U.S. 357,98 S.Ct. 663,54 L.Ed.2d 604
PartiesDon BORDENKIRCHER, Superintendent, Kentucky State Penitentiary, Petitioner, v. Paul Lewis HAYES
Docket NumberNo. 76-1334
Decision Date18 January 1978

434 U.S. 357
98 S.Ct. 663
54 L.Ed.2d 604
Don BORDENKIRCHER, Superintendent, Kentucky State Penitentiary, Petitioner,

v.

Paul Lewis HAYES.

No. 76-1334.
Argued Nov. 9, 1977.
Decided Jan. 18, 1978.
Rehearing Denied March 6, 1978.

See 435 U.S. 918, 98 S.Ct. 1477.

Syllabus

The Due Process Clause of the Fourteenth Amendment is not violated when a state prosecutor carries out a threat made during plea negotiations to have the accused reindicted on more serious charges on which he is plainly subject to prosecution if he does not plead guilty to the offense with which he was originally charged. Pp. 360-365.

(a) "[T]he guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136. Pp. 361-362.

(b) Though to punish a person because he has done what the law allows violates due process, see North Carolina v. Pearce, 395 U.S. 711, 738, 89 S.Ct. 2072, 2082, 23 L.Ed.2d 656, there is no such element of punishment in the "give-and-take" of plea bargaining as long as the accused is free to accept or reject the prosecutor's offer. Pp. 362-364.

(c) This Court has 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, and in pursuing that course here the prosecutor did not exceed constitutional bounds. Pp. 364-365.

547 F.2d 42, 6 Cir., reversed.

Robert L. Chenoweth, Frankfort, Ky., for petitioner.

J. Vincent Aprile II, Frankfort, Ky., for respondent.

Page 358

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.

I

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[d] 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,1 then Ky.Rev.Stat. § 431.190 (1973) (repealed 1975), which would subject Hayes to a mandatory sentence of

Page 359

life imprisonment by reason of his two prior felony convictions.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 pros cutor 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. The Kentucky Court of Appeals rejected Hayes' constitutional objections to the enhanced sentence, holding in an unpublished opinion that imprisonment for life with the possibility of parole was constitutionally permissible in light of the previous felonies of which Hayes had been convicted,3 and that the prosecutor's decision to indict him as a habitual offender was a legitimate use of available leverage in the plea-bargaining process.

Page 360

On Hayes' petition for a federal writ of habeas corpus, the United States District Court for the Eastern District of Kentucky agreed that there had been no constitutional violation in the sentence or the indictment procedure, and denied the writ.4 The Court of Appeals for the Sixth Circuit reversed the District Court's judgment. Hayes v. Cowan, 547 F.2d 42. While recognizing "that plea bargaining now plays an important role in our criminal justice system," id., at 43, the appellate court thought that the prosecutor's conduct during the bargaining negotiations had violated the principles of Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628, which "protect[ed] defendants from the vindictive exercise of a prosecutor's discretion." 547 F.2d, at 44. Accordingly, the court ordered that Hayes be discharged "except for his confinement under a lawful sentence imposed solely for the crime of uttering a forged instrument." Id., at 45. We granted certiorari to consider a constitutional question of importance in the administration of criminal justice. 431 U.S. 953, 97 S.Ct. 2672, 53 L.Ed.2d 269.

II

It may be helpful to clarify at the outset the nature of the issue in this case. While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do o was clearly expressed at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant's insistence on pleading not guilty.5 As a practical matter, in short, this

Page 361

case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain.

The Court of Appeals nonetheless drew a distinction between "concessions relating to prosecution under an existing indictment," and threats to bring more severe charges not contained in the original indictment—a line it thought necessary in order to establish a prophylactic rule to guard against the evil of prosecutorial vindictiveness.6 Quite apart from this chronological distinction, however, the Court of Appeals found that the prosecutor had acted vindictively in the present case since he had conceded that the indictment was influenced by his desire to induce a guilty plea.7 The ultimate conclusion of the Court of Appeals thus seems to have been that a prosecutor acts vindictively and in violation of due process of law whenever his charging decision is influenced by what he hopes to gain in the course of plea bargaining negotiations.

III

We have recently had occasion to observe: "[W]hatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice sys-

Page 362

tem. Properly administered, they can benefit all concerned." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136. The open acknowledgment of this previously clandestine practice has led this Court to recognize the importance of counsel during plea negotiations, Brady v. United States, 397 U.S. 742, 758, 90 S.Ct. 1463, 1474, 25 L.Ed.2d 747, the need for a public record indicating that a plea was knowingly and voluntarily made, Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, and the requirement that a prosecutor's plea-bargaining promise must be kept, Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427. The decision of the Court of Appeals in the present case, however, did not deal with considerations such as these, but held that the substance of the plea offer itself violated the limitations imposed by the Due Process Clause of the Fourteenth Amendment. Cf. Brady v. United States, supra, 397 U.S., at 751 n. 8, 90 S.Ct., at 1470. For the reasons that follow, we have concluded that the Court of Appeals was mistaken in so ruling.

IV

This Court held in North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656, that the Due Process Clause of the Fourteenth Amendment "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a "realistic likelihood of 'vindictiveness.' " Blackledge v. Perry, 417 U.S., at 27, 94 S.Ct., at 2102.

In those cases the Court was dealing with the State's unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction—a situation "very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power." Parker v. North Carolina, 397 U.S. 790,

Page 363

809, 90 S.Ct. 1458, 1474, 1479, 25 L.Ed.2d 785 (opinion of Brennan, J.). The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his...

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  • Texas v. Biden, 21-10806
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 13 Diciembre 2021
    ...charge to file or bring before a grand jury, generally rests entirely in his discretion.'" Id. at 464 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). That canonical formulation has everything to do with the decision whether to enforce a law against a given individual. It has not......
  • U.S. v. Pimienta-Redondo, PIMIENTA-REDOND
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 10 Enero 1989
    ...102 S.Ct. at 2494 (involving addition of felony count after defendant asked for a jury on misdemeanor charge); Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978) (discussing imposition of sentence after defendant stood trial, unsuccessfully, rather than plea......
  • U.S. v. Krezdorn, No. 81-1404
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 23 Diciembre 1982
    ...most basic sort.' " U.S. v. Goodwin, --- U.S. ----, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982), quoting Bordenkircher v. Page 1225 Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978). Thus, whenever a prosecutor adds new charges to an indictment, a careful inquiry is necessar......
  • Rockwell v. Palmer, No. 1:05-cv-205.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 31 Marzo 2008
    ...to prosecute and what charges to file generally rest entirely within the prosecutor's discretion. Id. (citing Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)). The prosecutor, however, may not base his or her decision on Page 837 defendant's race, gender, reli......
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2732 cases
  • Texas v. Biden, 21-10806
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 13 Diciembre 2021
    ...charge to file or bring before a grand jury, generally rests entirely in his discretion.'" Id. at 464 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)). That canonical formulation has everything to do with the decision whether to enforce a law against a given individual. It has not......
  • U.S. v. Pimienta-Redondo, PIMIENTA-REDOND
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 10 Enero 1989
    ...102 S.Ct. at 2494 (involving addition of felony count after defendant asked for a jury on misdemeanor charge); Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978) (discussing imposition of sentence after defendant stood trial, unsuccessfully, rather than plea......
  • U.S. v. Krezdorn, No. 81-1404
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 23 Diciembre 1982
    ...most basic sort.' " U.S. v. Goodwin, --- U.S. ----, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982), quoting Bordenkircher v. Page 1225 Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1978). Thus, whenever a prosecutor adds new charges to an indictment, a careful inquiry is necessar......
  • Rockwell v. Palmer, No. 1:05-cv-205.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 31 Marzo 2008
    ...to prosecute and what charges to file generally rest entirely within the prosecutor's discretion. Id. (citing Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)). The prosecutor, however, may not base his or her decision on Page 837 defendant's race, gender, reli......
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    • Georgetown Law Journal Nbr. 109-3, February 2021
    • 1 Febrero 2021
    ...107, 128 (1982) (“The [s]tates possess primary authority for def‌ining and enforcing the criminal law.”). 183. See Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“[S]o long as the prosecutor has probable cause to believe that the accused committed an offense def‌ined by statute, the deci......
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    • Georgetown Law Journal Nbr. 109-4, April 2021
    • 1 Abril 2021
    ...from others similarly situated and that there is no rational basis for the difference in treatment”). 310. Compare Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (“To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sor......
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