Bordenkircher v. Hayes, 434 U.S. 357; 98 S. Ct. 663; 54 L. Ed. 2d 604 (1978)

Facts—Kentucky charged Hayes with uttering a forged instrument of just over $88. The district attorney offered him five years if he pled guilty but threatened to charge him under Kentucky’s Habitual Criminal Act if he did not (Hayes had previously been convicted of illegally detaining a female—the original charge had been rape—and of robbery). Hayes rejected the plea bargain and was subsequently convicted and sentenced to life in prison under the Habitual Criminal Act. The Court of Appeals in Kentucky and a U.S. District Court upheld the sentence, which the Sixth U.S. Court of Appeals subsequently reversed.

Question—Was Hayes’s conviction under Kentucky’s Habitual Criminal Act in violation of his rights to due process under the Fourteenth Amendment?

Decision—No.

Reasons—J. Stewart (5–4). The prosecutor fully informed Hayes of his intentions in this case. Plea bargains when properly administered and guarded can benefit all concerned. They need to be struck in the presence of counsel; to be knowingly made; and, when made, kept. The prosecutor could have initially indicted Hayes under the Habitual Criminal Act, and there is no real difference in prosecutorial discretion in deciding to make such an indictment after Hayes’s refusal to accept the plea bargain rather than before.

J. Blackmun, dissenting, saw this case as an impermissible example of prosecutorial vindictiveness, brought against Hayes simply for exercising his constitutional right to a trial. Similarly, J. Powell argued that the fact that the prosecutor failed to indict Hayes under the Habitual Criminal Act in the first place indicated that he used this act both to discourage and to penalize Hayes’s legitimate exercise of his constitutional rights.