bordenkircher hayes argued november decided january due process clause fourteenth amendment violated state prosecutor carries threat made plea negotiations accused reindicted serious charges plainly subject prosecution plead guilty offense originally charged pp guilty plea often concomitant plea bargain important components country criminal justice system properly administered benefit concerned blackledge allison pp though punish person done law allows violates due process see north carolina pearce element punishment plea bargaining long accused free accept reject prosecutor offer pp accepted constitutionally legitimate simple reality prosecutor interest bargaining table persuade defendant forgo right plead guilty pursuing course prosecutor exceed constitutional bounds pp stewart delivered opinion burger white rehnquist stevens joined blackmun filed dissenting opinion brennan marshall joined post powell filed dissenting opinion post robert chenoweth assistant attorney general kentucky argued cause petitioner brief robert stephens attorney general vincent aprile ii argued cause filed brief respondent justice stewart delivered opinion question case whether due process clause fourteenth amendment violated state prosecutor carries threat made plea negotiations reindict accused serious charges plead guilty offense originally charged respondent paul lewis hayes indicted fayette county grand jury charge uttering forged instrument amount offense punishable term years prison rev stat repealed arraignment hayes retained counsel commonwealth attorney met presence clerk discuss possible plea agreement conferences prosecutor offered recommend sentence five years prison hayes plead guilty indictment also said hayes plead guilty save inconvenience necessity trial return grand jury seek indictment kentucky habitual criminal act rev stat repealed subject hayes mandatory sentence life imprisonment reason two prior felony convictions hayes chose plead guilty prosecutor obtain indictment charging habitual criminal act disputed recidivist charge fully justified evidence prosecutor possession evidence time original indictment hayes refusal plead guilty original charge led indictment habitual criminal statute jury found hayes guilty principal charge uttering forged instrument separate proceeding found twice convicted felonies required habitual offender statute sentenced life term penitentiary kentucky appeals rejected hayes constitutional objections enhanced sentence holding unpublished opinion imprisonment life possibility parole constitutionally permissible light previous felonies hayes convicted prosecutor decision indict habitual offender legitimate use available leverage process hayes petition federal writ habeas corpus district eastern district kentucky agreed constitutional violation sentence indictment procedure denied writ appeals sixth circuit reversed district judgment hayes cowan recognizing plea bargaining plays important role criminal justice system appellate thought prosecutor conduct bargaining negotiations violated principles blackledge perry protect ed defendants vindictive exercise prosecutor discretion accordingly ordered hayes discharged except confinement lawful sentence imposed solely crime uttering forged instrument granted certiorari consider constitutional question importance administration criminal justice ii may helpful clarify outset nature issue case prosecutor actually obtain recidivist indictment plea conferences ended intention clearly expressed outset plea negotiations hayes thus fully informed true terms offer made decision plead guilty situation therefore prosecutor without notice brought additional serious charge plea negotiations relating original indictment ended defendant insistence pleading guilty practical matter short case different grand jury indicted hayes recidivist outset prosecutor offered drop charge part plea bargain appeals nonetheless drew distinction concessions relating prosecution existing indictment threats bring severe charges contained original indictment line thought necessary order establish prophylactic rule guard evil prosecutorial vindictiveness quite apart chronological distinction however appeals found prosecutor acted vindictively present case since conceded indictment influenced desire induce guilty plea ultimate conclusion appeals thus seems prosecutor acts vindictively violation due process law whenever charging decision influenced hopes gain course plea bargaining negotiations iii recently occasion observe whatever might situation ideal world fact guilty plea often concomitant plea bargain important components country criminal justice system properly administered benefit concerned blackledge allison open acknowledgment previously clandestine practice led recognize importance counsel plea negotiations brady need public record indicating plea knowingly voluntarily made boykin alabama requirement prosecutor promise must kept santobello new york decision appeals present case however deal considerations held substance plea offer violated limitations imposed due process clause fourteenth amendment cf brady supra reasons follow concluded appeals mistaken ruling iv held north carolina pearce due process clause fourteenth amendment requires vindictiveness defendant successfully attacked first conviction must play part sentence receives new trial principle later applied prohibit prosecutor reindicting convicted misdemeanant felony charge defendant invoked appellate remedy since situation also realistic likelihood vindictiveness blackledge perry cases dealing state unilateral imposition penalty upon defendant chosen exercise legal right attack original conviction situation different negotiation common plea bargaining prosecution defense arguably possess relatively equal bargaining power parker north carolina opinion brennan emphasized due process violation cases pearce perry lay possibility defendant might deterred exercise legal right see colten kentucky chaffin stynchcombe rather danger state might retaliating accused lawfully attacking conviction see blackledge perry supra punish person done law plainly allows due process violation basic sort see north carolina pearce supra opinion black agent state pursue course action whose objective penalize person reliance legal rights patently unconstitutional chaffin stynchcombe supra see jackson plea bargaining element punishment retaliation long accused free accept reject prosecution offer plea bargaining flows mutuality advantage defendants prosecutors reasons wanting avoid trial brady supra defendants advised competent counsel protected procedural safeguards presumptively capable intelligent choice response prosecutorial persuasion unlikely driven false indeed acceptance basic legitimacy plea bargaining necessarily implies rejection notion guilty plea involuntary constitutional sense simply end result bargaining process hypothesis plea may induced promises recommendation lenient sentence reduction charges thus fear possibility greater penalty upon conviction trial see aba project standards criminal justice pleas guilty app draft note plea bargaining transformation criminal process harv rev cf brady supra north carolina alford confronting defendant risk severe punishment clearly may discouraging effect defendant assertion trial rights imposition difficult choices inevitable permissible attribute legitimate system tolerates encourages negotiation pleas chaffin stynchcombe supra follows tolerating encouraging negotiation pleas necessarily accepted constitutionally legitimate simple reality prosecutor interest bargaining table persuade defendant forgo right plead guilty disputed hayes properly chargeable recidivist statute since fact convicted two previous felonies system long prosecutor probable cause believe accused committed offense defined statute decision whether prosecute charge file bring grand jury generally rests entirely discretion within limits set legislature constitutionally valid definition chargeable offenses conscious exercise selectivity enforcement federal constitutional violation long selection deliberately based upon unjustifiable standard race religion arbitrary classification oyler boles hold prosecutor desire induce guilty plea unjustifiable standard like race religion may play part charging decision contradict premises underlie concept plea bargaining moreover rigid constitutional rule prohibit prosecutor acting forthrightly dealings defense invite unhealthy subterfuge drive practice plea bargaining back shadows recently emerged see blackledge allison doubt breadth discretion country legal system vests prosecuting attorneys carries potential individual institutional abuse broad though discretion may undoubtedly constitutional limits upon exercise hold course conduct engaged prosecutor case openly presented defendant unpleasant alternatives forgoing trial facing charges plainly subject prosecution violate due process clause fourteenth amendment accordingly judgment appeals reversed john hill attorney general david kendall first assistant attorney general joe dibrell anita ashton assistant attorneys general filed brief state texas amicus curiae urging reversal paul halvonik charles sevilla ephraim margolin sheldon portman filed brief california state public defender et al amici curiae urging affirmance footnotes fact told time initial bargaining session intend plead guilty five years charge save inconvenience necessity trial taking time intended return grand jury ask indict based upon prior felony convictions tr time hayes trial statute provided ny person convicted third time felony shall confined penitentiary life rev stat repealed statute replaced rev stat supp hayes sentenced indeterminate term years addition new statute previous conviction basis enhanced sentencing prison term one year imposed sentence probation completed within five years present offense offender age offense committed least one hayes prior convictions meet conditions see infra according testimony hayes pleaded guilty years old charge detaining female lesser included offense rape result served five years state reformatory convicted robbery sentenced five years imprisonment released probation immediately opinion district unreported compare ex rel williams mcmann citing decisions necessarily endorse although prosecutor may course plea negotiations offer defendant concessions relating prosecution existing indictment may threaten defendant consequence severe charges may brought insists going trial prosecutor obtains indictment less severe facts known time might permit makes discretionary determination interests state served seeking serious charges accordingly plea negotiations fail procures indictment charging serious crime strong inference created reason serious charges vindictiveness circumstances prosecutor required justify action case vindictive motive need inferred prosecutor admitted case involve constitutional implications prosecutor offer plea bargaining adverse lenient treatment person accused see ali model code procedure commentary pp might pose greater danger inducing false guilty plea skewing assessment risks defendant must consider cf brady potential led many recommendations prosecutor discretion controlled means either internal external guidelines see ali model code procedure criminal justice aba project standards criminal justice prosecution function app draft abrams internal policy guiding exercise prosecutorial discretion ucla rev justice blackmun justice brennan justice marshall join dissenting feel although purporting rule narrowly course conduct engaged prosecutor case ante page departing least restricting principles established north carolina pearce blackledge perry decisions sound principles salutary must assume require view affirmance reversal judgment appeals present case pearce indeed notes ante held vindictiveness defendant successfully attacked first conviction must play part sentence receives new trial accordingly new trial sentence defendant receives greater imposed first trial must explained reasons based upon objective information concerning identifiable conduct part defendant occurring time original sentencing proceeding pursued appeal collateral remedy hand sentence imposed jury jury aware original sentence second sentence otherwise shown product vindictiveness pearce application chaffin stynchcombe later perry applied principle prosecutorial conduct realistic likelihood vindictiveness held requirement fourteenth amendment due process prevented prosecutor reindictment convicted misdemeanant felony charge defendant exercised right appeal misdemeanor conviction thus obtain trial de novo noted prosecution considerable stake discouraging appeal ibid says however concern vindictiveness import present case despite difference five years prison life sentence concerned plea bargaining negotiation said ante element punishment retaliation long accused free accept reject prosecution offer yet case vindictiveness present extent thought pearce perry prosecutor admitted see ante sole reason new indictment discourage respondent exercising right trial even admission made plea negotiations conducted face less serious charge first indictment fail charging second indictment serious crime conduct creates strong inference vindictiveness judge mccree aptly observed writing unanimous panel sixth circuit prosecutor initially makes discretionary determination interests state served seeking serious charges hayes cowan therefore understand pearce due process require prosecution justify action basis discouraging respondent exercise right trial prosecutorial vindictiveness seems present narrow context fact due process clause protect perceive little difference vindictiveness describes ante exercise legal right attack original conviction vindictiveness negotiation common plea bargaining prosecutorial vindictiveness context still prosecutorial vindictiveness due process clause protect accused however asserts appeals rightly held affirm judgment might argued really makes little difference case decided holding gives plea bargaining full sway despite vindictiveness contrary result however merely prompt aggressive prosecutor bring greater charge initially every case thereafter bargain consequences accused still adverse bargain greater charge face likelihood increased bail run risk less inclined accept bargained plea nonetheless far preferable hold prosecution charge originally content bring justify eyes public brady premise accepted plea bargaining legitimate practice nevertheless observed make reference situation prosecutor judge deliberately employ charging sentencing powers induce particular defendant tender plea guilty see also colon hendry jamison app demarco supp cd cal aff cert denied post prosecutors without saying may sometimes bring charges serious think appropriate ultimate disposition case order gain bargaining leverage defendant add support today decision approval advantages gained plea negotiations never openly sanctioned deliberate overcharging taken cynical view bargaining process see north carolina alford santobello new york normally course impossible show prosecutor courts necessarily deferred prosecutor exercise discretion initial charging decisions even overcharging sanctioned strong reasons fairness charges presented beginning bargaining process rather filliped threat end first means prosecutor required reach charging decision without knowledge particular defendant willingness plead guilty hence defendant truly believes innocent wishes reason go trial likely subject quite devastating gamble since prosecutor fixed incentives average case second healthful keep charging practices visible general public political bodies judge whether policy followed fair one visibility enhanced prosecutor required lay cards table indictment public record beginning bargaining process rather making use unrecorded verbal warnings serious indictments yet come finally question whether fair pressure defendants plead guilty threat reindictment enhanced charge conduct defendant way knowing whether prosecutor indeed entitled bring trial enhanced charge though dispute respondent met definition habitual offender kentucky law conceivable properly instructed kentucky grand jury response considerations ultimately moved kentucky legislature amend habitual offender statute refused subject respondent onerous penalty forgery charge indication record new indictment obtained respondent given another chance plead guilty forged check charge exchange sentence justice powell dissenting although agree much opinion satisfied result case conduct plea bargaining met requirements due process respondent charged uttering single forged check amount kentucky law offense punishable prison term years apparently without regard amount forgery course plea bargaining prosecutor offered respondent sentence five years consideration guilty plea observe point five years prison offense charged hardly characterized generous offer apparently respondent viewed offer light declined accept protested innocent insisted going trial respondent adhered position even prosecutor advised seek new indictment state habitual criminal act subject respondent convicted mandatory life sentence two prior felony convictions prosecutor initial assessment respondent case led forgo indictment habitual criminal statute circumstances respondent prior convictions relevant assessment view case respondent years old committed first offense charged rape pleaded guilty lesser included offense detaining female one participants incident sentenced life imprisonment respondent sent prison reformatory served five years respondent second offense robbery time found guilty jury sentenced five years prison placed probation served time although respondent prior convictions brought within terms habitual criminal act offenses result imprisonment yet addition conviction charge involving subjected respondent mandatory sentence imprisonment life persons convicted rape murder often punished severely explanation appears record prosecutor decision escalate charge respondent respondent refusal plead guilty prosecutor conceded purpose discourage respondent assertion constitutional rights majority accepts characterization events see ante seems question asked circumstances whether prosecutor reasonably might charged respondent habitual criminal act first place deference courts properly accord exercise prosecutor discretion perhaps foreclose judicial criticism prosecutor originally sought indictment act unreasonable seemed prosecutor evidently made reasonable responsible judgment subject individual mandatory life sentence new offense societal implications limited accompanying uttering single forged check circumstances prior convictions confirmed inappropriateness applying habitual criminal statute think may inferred prosecutor deemed unreasonable public interest put defendant jeopardy sentence life imprisonment may situations prosecutor fully justified seeking fresh indictment serious offense plausible justification might reasonable public interest initially charged defendant greater offense cases know harsher indictment sought inquiry prosecutor motive neither indicated likely fruitful cases agree majority situation differ materially one higher charge brought outset see ante case inquiry prosecutor purpose made unnecessary candid acknowledgment threatened procure fact procured habitual criminal indictment respondent insistence exercising constitutional rights stated unequivocal terms discussing jackson north carolina pearce jackson pearce clear subsequent cases dulled force objective state practice discourage assertion constitutional rights patently unconstitutional chaffin stynchcombe brady drew distinction situation approved situation prosecutor judge deliberately employ charging sentencing powers induce particular defendant tender plea guilty process recognized essential functioning system normally affords genuine benefits defendants well society system work effectively prosecutors must accorded widest discretion within constitutional limits conducting bargaining cf supra especially true defendant represented counsel presumably fully advised rights exceptional case conclude scales bargaining unevenly balanced arouse suspicion case prosecutor actions denied respondent due process admitted purpose discourage penalize unique severity exercise constitutional rights implementation strategy calculated solely deter exercise constitutional rights constitutionally permissible exercise discretion affirm opinion appeals facts case suggested respondent eligible parole consideration serving years majority suggests ante case distinguished case prosecutor initially obtains indictment enhancement statute later agrees drop enhancement charge exchange guilty plea agree two situations alike assumed hypothetical prosecutor decision charge enhancement statute occasioned consideration public interest strategy discourage defendant exercising constitutional rights theory condemn practices practice hypothetical situation largely unreviewable majority view confuses propriety particular exercise prosecutorial discretion unreviewability instant case however problem proof indeed kentucky legislature subsequently determined habitual criminal statute respondent convicted swept broadly identify adequately kind prior convictions trigger application least one respondent two prior convictions satisfy criteria revised statute impact statute applied reduced significantly situations like one third offense relatively minor see ante