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Bordenkircher v. Hayes

Significance

The Supreme Court chose to adjudicate this case in an effort to clarify previous decisions, which had not provided specific criteria under which the plea bargaining process should be conducted. Justices for the majority held that although prosecutors might threaten to pursue harsher sentences if a potential defendant chose to plea "not guilty" and go to trial, such negotiations did not constitute a prejudicial or vindictive act. Instead, the majority opinion ruled that the only requirement was that a defendant had to exercise free will in making a choice to refuse a lesser sentence for a guilty plea.

In 1977 Paul Lewis Hayes was charged for writing a single forged check in the amount of $88.30. Under Kentucky law, the offense was punishable by a term of two to ten years in prison. During plea bargaining, the state prosecutor recommended a sentence of five years if Hayes would plead guilty to the indictment. The defendant was warned that if he did not comply with the offer and "save the court of the inconvenience and necessity of a trial," the prosecutor intended to indict him as a recidivist on the basis of two prior felony convictions. That indictment would bring the defendant within the terms of the state Habitual Criminal Act statute, which at the time of trial, provided that "any person convicted a . . . . third time of [a] felony . . . . shall be confined in penitentiary during his life."

Although the state did not obtain an indictment under the Habitual Criminal Act (also called the "recidivist statute") until after the plea session had ended, the prosecutor's intention to do so was clearly expressed at the end of plea conference. Thus, Hayes was fully notified of the sentencing possibilities of trial if he made the decision to plead "not guilty." The prosecutor carried out his threat and reindicted Hayes under the state's recidivist statute. The grand jury found sufficient grounds on which to issue an indictment charging the defendant with felonious forgery and triggering prosecution under provisions of the recidivist statute. In proceedings that followed, because the jury found that the defendant had two prior felony convictions, the defendant was sentenced to mandatory life imprisonment (and would only be eligible for parole consideration after serving 15 years).

The Kentucky Court of Appeals rejected Hayes's petition objecting to the enhanced sentence and in an unpublished opinion held that "imprisonment for life with the possibility of parole was constitutionally permissible in light of the previous felonies of which Hayes had been convicted." The court further reasoned that the prosecutor's decision to charge him as a habitual offender was, in the normal course of negotiations, legitimate application of the "give and take" inherent in plea bargaining. Hayes subsequently petitioned for a federal writ of habeas corpus to the state District Court for the Eastern District of Kentucky, which denied the writ. The court affirmed the decision of the lower court, confirming that neither the enhanced sentence nor the procedure of the indictment violated the Constitution.

The Court of Appeals for the Sixth Circuit reversed the district court's ruling. The court's position was that while "plea bargaining now plays an important role in our criminal justice system," the state prosecutor's conduct in plea sessions had violated the principles of Blackledge v. Perry (1974), which stated that the U.S. Constitution "protected defendants from the vindictive exercise of a prosecutor's discretion." Accordingly, the court of appeals ordered that Hayes be set free after serving a prison term commensurate with a guilty conviction for passing a forged document.

On a writ of certiorari (a written order directing a court to forward a case for review), the U.S. Supreme Court agreed to consider the matter because they felt inherent in the case "a constitutional question of importance in the administration of criminal justice." In a 5-4 vote, the Supreme Court overturned the lower court's decision. Writing for the majority, Justice Stewart delivered the Court's opinion. The constitutional question addressed by the Court was whether the prosecutor had violated the Due Process Clause of the Fourteenth Amendment when he carried out a threat he made in the course of plea bargaining to reindict Hayes on harsher charges if he pleaded not guilty.

Even though the prosecutor did not obtain an indictment under the recidivist statute until after the plea session ended, at the outset of the plea bargaining the defendant was fully informed of the sentencing possibilities should he undergo a trial. Further, the additional charge (brought as a result of his prior felonious convictions) was not exclusively related to the original indictment. The appellate court felt that there was "strong likelihood of vindictiveness" in the case. The court of appeals found no such element of retaliation or wrongdoing in the process, however, as long as Hayes was free to choose and knowingly make a decision. In explaining the rationale for its decision, the appellate court cited North Carolina v. Pearce (1969), wherein the U.S. Supreme Court held 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." This case outlined criteria with respect to what constituted prosecutorial vindictiveness. The state prosecutor's newer, more punitive indictment made the stakes higher if the defendant in Pearce was convicted. However, the indictment was not retaliation for his having successfully defended himself in a prior action. Thus, because the defendant knew what the possibilities were if he chose to plead "not guilty," the prosecutor's threat to seek a stringent sentence in no way approached what the Supreme Court deemed "vindictiveness." The court of appeals recognized the difference between a possible deal that prosecutor and defendant might reach on the actual indictment, and the threat that a greater sentence would be imposed on the defendant with a new, more stringent charge.

In expressing the Court's majority opinion, Justice Black expressed that "to punish a person (such as the state prosecutor) because he had done what the law plainly allows him to do is a due process violation of the most basic sort." Moreover, the Court rejected the idea that Hayes's constitutional rights would have been infringed had he made a guilty plea to a lesser charge because, as such, that plea would have been involuntary. The Court recognized the choices defendants faced were surely difficult choices but that such was the "inevitable" and legally "permissible" nature of a U.S. legal system that encouraged plea negotiations. In fact, the majority opinion found no fault if, in facing greater punishment, a defendant might be deterred from exercising the right to trial in order to gain a more favorable sentence.

The U.S. Supreme Court found that Hayes was properly chargeable under the recidivist statute because he had two, prior, felony convictions. It was up to the prosecutor to determine what charges to file, within the limits of the recidivist statute, and then present them to the jury. And while selection based on race, religion, gender, and other "arbitrary classification" remained a constitutional violation in itself, selection was permissible if not made upon those criteria. In the Hayes case, the prosecutor did not make an "arbitrary classification" but rather made determination that it would be in the public interest to file charges under the recidivist statute.

Justice Blackmun wrote the dissenting opinion. The dissenting justices felt that the Kentucky prosecutor neglected principles set in North Carolina v. Pearce and Blackledge v. Perry. If a defendant invokes the right of pleading "not guilty," she should not be punished for such an action by facing an exceedingly more stringent sentence as a result of going to trial. Moreover, the justices felt that if, in coming to a new trial, a defendant receives a harsher punishment than would have been meted in the first one, the prosecutor must explain such action. And justification for such actions could not simply be to "discourage" the defendant from exercising rights guaranteed under the Constitution.

Feeling compelled to render an additional, separate dissenting opinion, Justice Powell stated that he was inclined to support the majority opinion. His opinion departed from the Court's findings, however, because he did not share their view that the prosecutors conduct during the plea bargaining process was in accordance with due process. He pointed out that the prosecutor did not offer any explanation for seeking an indictment that carried extreme punishment other than the defendant's refusal to plead guilty to the lesser charge. Accordingly, Powell agreed with the minority opinion that it was constitutionally unacceptable to deter a defendant from using his rights. In discussing United States v. Jackson (1968) and North Carolina v. Pearce (1969), he charged that the Court had stated in clear terms that "Jackson and Pearce are clear, and subsequent cases have not dulled their force: if the only objective of a state practice is to discourage assertion of constitutional rights it is `patently unconstitutional.'" But while the Court had recognized plea bargaining as a vital part of the criminal justice system, the facts of Hayes's case suggested the prosecutor acted in a manner that denied the respondent his right to due process.

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1973 to 1980Bordenkircher v. Hayes - Significance, Impact, Pro And Con: Plea Bargaining, Further Readings