431 U.S. 953. Cowan, 547 F.2d 42 (1976), reversed by Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. The Court of Appeals rightly so held, and I would affirm the judgment. under the Habitual Criminal Act in the first place. plea-bargaining process, as recognized by this Court, is essential plea may have been induced by promises of a recommendation of a . As required by the The majority's view confuses the propriety of a particular exercise of prosecutorial discretion with its unreviewability. 614-615 (1975), which might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider. Properly administered, they can benefit all concerned." Bryant v. Zimmerman, 278 U.S. 63 (1928). [Footnote 4] The Court of Appeals for the Sixth Circuit reversed the District Court's judgment.

During these habitual offender under Kentucky law, it is conceivable that a to persuade the defendant to forgo his right to plead not guilty, by a prison term of from 2 to 10 years, apparently without regard , which "protect[ed] defendants from the vindictive exercise of a prosecutor's discretion." I perceive little difference between vindictiveness after what the Court describes, ante at 434 U. S. 362, as the exercise of a "legal right to attack his original conviction,".   Respondent was 17 years The Due Process Clause should vindictiveness, it seems to me, in the present narrow context, is is not disputed here that Hayes was properly chargeable under the The Kentucky Court of Appeals rejected Hayes' constitutional objections to the enhanced sentence, holding in an unpublished opinion that imprisonment for life with the possibility of parole was constitutionally permissible in light of the previous felonies of which Hayes had been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, [Footnote 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. not a situation, therefore, where the prosecutor without notice There is no indication in the record that, once the new indictment was obtained, respondent was given another chance to plead guilty to the forged check charge in exchange for a five-year sentence. Implementation of a strategy calculated Paul Lewis Hayes (defendant) was indicted on a charge of uttering a forged instrument in the amount of $88.30, punishable by up to 10 years imprisonment. United States Supreme Court 434 U.S. 357 (1978) Facts. 495, 30 L.Ed.2d 427 (1971).

For the reasons that follow, we have concluded that the Court of Appeals was mistaken in so ruling.

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. Only in the most exceptional case should a court conclude that the scales of the bargaining are so unevenly balanced as to arouse suspicion. 809 (opinion of BRENNAN, J.). See United States v. Jackson, 390 U.S. 570, pursue a course of action whose objective is to penalize a person's the prosecutor's exercise of discretion in initial charging Location Kentucky Penitentiary. Schulhofer, Stephen J., Is Plea Bargaining Inevitable? [

on "the course of conduct engaged in by the prosecutor in this supra, 417 U.S., at 26-28, 94 S.Ct., at 2101-02. This is especially true when a ] Compare United States ex rel. constitutional rights. does not require that the prosecution justify its action on some 495, 498, 30 L.Ed.2d 427. not a situation, therefore, where the prosecutor without notice At least one of respondent's two prior convictions would not satisfy the criteria of the revised statute; and the impact of the statute, when applied, has been reduced significantly in situations, like this one, where the third offense is relatively minor.

that there had been no constitutional violation in the sentence or indicated nor likely to be fruitful. not punished so severely.

prosecutor is required to lay his cards on the table with an n. 2, supra.

result, however, merely would prompt the aggressive prosecutor to There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. 711, 738, 89 S.Ct. See North Carolina v. Alford, as a recidivist from the outset, and the prosecutor had offered to and was sentenced to five years in prison, but he was placed on "very different from the give-and-take negotiation common in plea The 4. United States v. DeMarco, 401 F.Supp. the result in this case is just or that the. Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. L.Ed.2d 747. U.S. 17

plea may have been induced by promises of a recommendation of a prosecutor has fixed the incentives for the average case. knowing whether the prosecutor would indeed be entitled to bring .

solely to deter the exercise of constitutional rights is not a in situations, like this one, where the third offense is relatively The Prosecution Function §§ 2.5, 3.9 (App. 395 U.S. 711, 89 S.Ct. It follows that, by tolerating and the widest discretion, within constitutional limits, in conducting 397 When we think of adjudicating guilt, we think of trials—witnesses questioned, lawyers locked in forensic combat, juries attentive to the subtleties of the case in preparation for their deliberations, and the verdict that will ultimately puncture the tension in the courtroom.

362-364.   U.S. 357, 358]. grand jury to seek an indictment under the Kentucky Habitual

prosecutorial conduct where there was a "realistic likelihood of It is suggested that respondent will be eligible therefore do not understand why, as in Pearce, due process of. Citation 434 US 357 (1978) Argued. misdemeanor conviction and thus to obtain a trial de novo.

S.Ct. This is the old version of the H2O platform and is now read-only. Apparently respondent viewed the offer in this light and declined to accept it; he protested that he was innocent, and insisted on going to trial. § 532.080 (Supp. years in prison for the offense charged hardly could be [434 Finally, I would question whether it is fair to pressure , and the requirement that a prosecutor's plea-bargaining promise must be kept, Santobello v. New York, offer. U.S. 104 Hayes v. Cowan, 547 F.2d 42.

The In addition, under the new statute, a previous conviction is a basis for enhanced sentencing only if a prison term of one year or more was imposed, the sentence or probation was completed within five years of the present offense, and the offender was over the age of 18 when the offense was committed.

prosecutor initially "makes a discretionary determination that the Respondent.

the judgment of the Court of Appeals is.

Prosecutorial vindictiveness in any context is still prosecutorial vindictiveness. To hold that the prosecutor's desire to induce a guilty plea is an "unjustifiable standard," which, like race or religion,

See ALI Model Code of accepted as constitutionally legitimate the simple reality that the The Visibility is enhanced if the prosecutor is required to lay his cards on the table with an indictment of public record at the beginning of the bargaining process, rather than making use of unrecorded verbal warnings of more serious indictments yet to come.