In Bordenkircher v. Hayes, 434 U.S. 357 (1978), the prosecutor offered to recommend a five-year sentence if Hayes pleaded guilty to forgery. He further told Hayes if he did not plead guilty and "gave the court the inconvenience and necessity of a trial," then he would seek reindictment under the state's recidivist statute, subjecting him to a mandatory sentence of life imprisonment because of two prior felony convictions. Hayes chose to stand trial and the prosecutor carried out his threat. Hayes was convicted and sentenced accordingly.
The Supreme Court first carefully defined the issue in dispute by stating:
"While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do so 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. As a practical matter, in short, this 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 the charge as part of the plea bargain." ( Bordenkircher v. Hayes, supra, 434 U.S. 357, 360.)
The court found no due process violation, recognized the plea bargaining process as an important component of the criminal justice system ( id. at p. 362), and reasoned there is no element of punishment or retaliation in the "give-and-take" of plea bargaining so long as the accused is free to accept or reject the prosecutor's offer ( id. at p. 363).
The court further explained: "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 negotiations of pleas.' Chaffin v. Stynchcombe, 412 U.S., at 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 forego his right to plead not guilty." ( Bordenkircher v. Hayes, supra, 434 U.S. 357, 364.)
The Supreme Court examined allegations of prosecutorial vindictiveness in a pretrial setting.
There the defendant had been indicted for uttering a forged check in the amount of $ 88.30, and the prosecutor's plea offer was a five year prison sentence.
The prosecutor threatened to re-indict under the Kentucky Habitual Criminal Act mandating a life sentence if the defendant did not accept the offer.
After the defendant refused, he was re-indicted as a habitual offender, convicted by a jury and sentenced to a life term.
The Court held that the presumption of prosecutorial vindictiveness was not applicable.
The Court also deemed it immaterial that the prosecutor possessed the requisite evidence at the time of the original indictment but did not charge the defendant as an habitual offender until the subsequent indictment.
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.
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."
The United States Supreme Court ruled that the doctrine of prosecutorial vindictiveness does not apply to the normal give-and-take of plea negotiations, even when the prosecutor threatens to reindict the defendant on a more severe charge if the plea offer is rejected.
In Bordenkircher, the prosecutor offered to allow the defendant, Hayes, to plead guilty to a charge of passing bad checks. The prosecutor also told Hayes, who had two prior felony convictions, that if he rejected the offer the prosecutor would seek a new indictment and charge Hayes as a habitual criminal. The penalty for this recidivist offense -- a mandatory term of life imprisonment -- was much more serious than the penalty for passing bad checks.
After Hayes turned down the offer, the prosecutor followed through with his threat and reindicted Hayes, adding the recidivist charge. Hayes then went to trial, was convicted as a recidivist, and was sentenced to a life term. (Id. at 359.)
Hayes appealed, but the Supreme Court rejected his vindictive prosecution claim. In doing so, the Court acknowledged 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."
Further, the Court recognized that in the normal "'give-and-take' of plea bargaining, there is no forbidden element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer."
Ultimately, the Bordenkircher Court held that under the facts of the case "the course of open conduct engaged in by the prosecutor ... which no more than openly presented the defendant with the unpleasant alternatives of foregoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment." (Id. at 365.)
In Bordenkircher v. Hayes, was the first time the Court considered an allegation of prosecutorial vindictiveness that arose in a pretrial setting.
The case dealt with the institution of higher charges during plea bargaining, after notifying the defendant of the consequences of failing to plead to the lesser charge. See Bordenkircher, 434 U.S. at 365.
In declining to apply a presumption of vindictiveness, the Court recognized that additional charges obtained by a prosecutor could not necessarily be characterized as an impermissible penalty because charges brought in an original indictment may be abandoned by the prosecutor in the course of plea negotiation.
The Court suggested that the validity of a pretrial charging decision must be measured against the broad discretion of the prosecutor. See 434 U.S. at 364.