## Facts

- Paul Lewis Hayes was indicted in Fayette County, Kentucky for uttering a forged check for \$88.30, punishable by 2–10 years’ imprisonment.
- During plea negotiations, the prosecutor offered to recommend a 5-year sentence if Hayes pleaded guilty.
- The prosecutor stated that if Hayes refused and proceeded to trial, the prosecutor would seek a new indictment under Kentucky’s Habitual Criminal Act, which would mandate a life sentence based on Hayes’s prior felony convictions.
- Hayes rejected the plea offer.
- The prosecutor obtained a habitual-offender indictment; Hayes was convicted of the forgery charge, and in a separate proceeding the jury found two prior felony convictions.
- Hayes received a mandatory life sentence under the habitual-offender statute.

## Issues

1. Whether the Due Process Clause is violated when a prosecutor, during plea bargaining, threatens to seek more serious charges if the defendant refuses to plead guilty and then carries out that threat, where the defendant is subject to prosecution on the more serious charge.

## Decision

- The Supreme Court reversed the Sixth Circuit and upheld the life sentence in a 5–4 decision.
- The Court held that due process was not violated by the prosecutor’s threat and subsequent filing of the habitual-offender charge.
- The Court distinguished cases presuming vindictiveness after a defendant exercises post-trial or appellate rights, holding that pretrial plea bargaining permits “give-and-take” charging decisions.
- Dissents argued the threatened sentence escalation functioned as punishment for insisting on trial and risked coercive plea bargaining.

## Legal Principles

- A prosecutor does not violate due process by presenting a defendant with the choice between a plea offer and exposure to more severe, legally supportable charges, so long as the defendant remains free to accept or reject the offer.
- Where the prosecutor has probable cause, charging decisions—including whether to seek an indictment on a more serious offense—generally fall within prosecutorial discretion.
- The presumption of unconstitutional vindictiveness recognized in contexts involving increased punishment after appeal or similar post-conviction proceedings does not automatically apply to pretrial plea negotiations.
- Plea bargaining may include substantial differentials between the plea offer and potential post-trial sentencing exposure without, by itself, establishing unconstitutional retaliation.

## Conclusion

The Court held that due process allows a prosecutor to threaten and then pursue more serious charges during pretrial plea negotiations when those charges are supported by probable cause and the defendant is free to reject the plea and proceed to trial.


Bordenkircher v. Hayes, 434 U.S. 357 (1978)