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Vindicating vindictiveness: prosecutorial discretion and plea bargaining, past and future.




   A. A Note on the Development of Plea Bargaining
   B. The Idea of Vindictiveness
   C. From Blackledge ...
      1. Waiver
      2. Stumbling into Vindictiveness
   D. ... To Bordenkircher

    A. Regulating Pleas in an Administrative System
    B. Toward a New Standard: Vindictiveness-as-Vengeance
       1. The Standard
       2. The Evidentiary Presumption
       3. The Merits
          a. Practical
          b. Doctrinal
          c. Expressive
          d. Conceptual


The day after the Internet activist and hacker Aaron Swartz committed suicide in January 2013, his family angrily described his death as "the product of a criminal justice system rife with intimidation and prosecutorial overreach." (1) The federal government had "contributed to his death," they argued, by bringing an "exceptionally harsh array of charges" for his unauthorized downloading of materials from the academic database JSTOR. (2)

Subsequent commentary agreed that Swartz had been pursued overzealously. Larry Lessig passionately criticized "the absurdity of the prosecutor's behavior," arguing: "Somehow, we need to get beyond the 'I'm right so I'm right to nuke you' ethics that dominates our time. That begins with one word: Shame." (3) Many others with a variety of ideological leanings agreed. (4)

Some characterized the behavior of the U.S. Attorney's Office as "vindictive." (5) The prosecutors' approach at least outwardly appeared to be aimed at making the defendant suffer a severe price for conduct that hurt no one and resulted in no financial gain. In the ordinary sense of the word, (6) the government's conduct may well have been vindictive. But it almost certainly was not vindictive in the legal sense. (7)

Legal vindictiveness does not refer to a prosecutor's generic ill feeling toward, or even his desire to harm, a defendant. Rather, as defined by the Supreme Court, vindictiveness means that a prosecutor has retaliated against a defendant for the exercise of a legal right, denying her due process. (8) One might think, then, that pursuing more severe charges or a harsher sentence after a defendant exercises her right to a jury trial (9) would constitute vindictiveness. But it doesn't. The law specifically permits severely penalizing defendants for going to trial in an effort to induce a guilty plea--or, in the Court's words, "openly present[ing] the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution." (10)

Using charging discretion aggressively to pressure defendants into pleading guilty is exactly what the existing doctrine of vindictive prosecution permits. And this is, by and large, what prosecutors do. (11) But this conduct is precisely what many people found reprehensible and "vindictive" (12) about the government's generally ordinary (13) treatment of Aaron Swartz. The Swartz case therefore brings into relief how inadequate our existing legal vocabulary and doctrine are to address prosecutorial behavior that many intuitively find unfair and improper. Indeed, the legal concept of "vindictive prosecution" is an essentially useless analytic tool in its current form. It fails to capture much of the behavior that we might properly want the law to name and shame with that label.

The current state of affairs also invites reflection on whether plea bargaining ought to be more closely policed and, if so, how. In three recent cases, (14) responding to contemporary scholarship about plea bargaining and coercive prosecutorial power, the Supreme Court has attempted to regulate the market for pleas. (15) Its chosen route for doing so has been the defendant's right to the effective assistance of counsel. That right safeguards the "fundamental fairness" of the proceedings, ensuring a level of reliability sufficient to sustain "confidence in the outcome." (16) The underlying premise of the Court's recent intervention into plea bargaining, therefore, is that some bargained-for pleas may be "bad" or "false" outcomes unworthy of confidence. But it is not at all clear that imposing obligations on defense lawyers, retrospectively enforced on post-conviction review, is the best way to avoid "bad" bargains. The Court's recent doctrinal innovation in this area should prompt us to ask which actors are best positioned to establish and enforce norms of what constitutes a "good" or "true" bargain. (17)

The inadequacy of the way the law currently talks about "vindictiveness" and the recent doctrinal and scholarly ferment about plea bargaining give rise to this Note's two related projects.

The first is to explain why "vindictive prosecution" came to have the particularized, unusual, and ultimately unhelpful meaning that it does. To that end, I present new research about the origins and development of the doctrine of vindictive prosecution. Most scholarship on vindictive prosecution is relatively old and highly doctrinal. (18) The story newly told here is, I hope, interesting in its own right. It may help to illuminate the unpredictable circumstances that shape Supreme Court doctrine and, as a result, the lives governed by it. (19) More purposefully, I aim to dispel the notion that the law's equation of "vindictive" with "retaliation for the exercise of a legally protected right, other than the right to a jury trial" ought to be seen as unimpeachable precedent. And, most important, I hope that excavating the development of the doctrine can help us understand why it did not work and how it might become relevant again.

The Note's second project, then, is to rehabilitate the legal concept of "vindictive prosecution" in hopes of contributing to current debate and doctrinal development about prosecutorial discretion, plea bargaining, and excessive punishment. Intervening in the ongoing discussion and responding to the Supreme Court's recent efforts, I offer a new proposal. I suggest that reviving some parts of the old vindictive prosecution doctrine while shedding some of its unnecessary strictures can produce a useful framework for policing discretion, fairness, and leverage in the plea bargaining process.

I argue that the idea of vindictive prosecution as retaliation for the exercise of a legal right was a poorly conceived accident from the beginning. It grew out of a case meant to be about something else, and it failed to negotiate the fundamental tension between encouraging plea bargaining and honoring the right to trial. Vindictive prosecution doctrine was unstable because it reflected a Court lurching from one pole to another--from glorifying process values with little regard for practical consequences, to protecting plea bargaining at almost any cost to the right to trial--without working to stake out a middle ground. I identify such a middle ground and attempt to revitalize the legal concept of vindictiveness in a way that negotiates the tension between pleas and trials. In particular, I argue that an updated vindictive prosecution standard prohibiting prosecutors from punishing the defendant's exercise of the right to a trial as a wrong would be responsive to salient problems in today's criminal justice system. It may not be an ideal solution, but it suggests that it is possible to address important and competing objectives--imposing boundaries on prosecutorial discretion, valuing the constitutional right to trial, and permitting efficient bargains--in minimally disruptive fashion.

This argument proceeds in two parts.

Part I tells the story of how vindictive prosecution doctrine came to be. Its erratic path reflects the fundamental tension between venerating the Sixth Amendment right to a jury trial and coherently regulating a system designed to discourage its exercise. Section I.A presents background on the practice and law of plea bargaining. Section I.B discusses vindictiveness doctrine's origins in another context. Section I.C discusses the Court's hasty and unthinking application of vindictiveness to prosecutorial conduct, while Section I.D explains its retreat.

Part II contends that the idea of vindictive prosecution could prove newly useful in regulating prosecutorial discretion while both genuinely respecting and formally venerating the right to trial. Section II.A discusses existing scholarship and doctrine addressing the regulation of the plea-bargaining market. I argue that the Court is moving toward, but has not yet effectively imposed, constraints on prosecutors' ability to drive an exceptionally harsh bargain. Section II.B argues for the merits of a new standard prohibiting prosecutors from acting with the subjective intent to punish the defendant's exercise of his right to trial, rather than merely with the goal or effect of deterring it. A conclusion follows.

For a brief period during the 1970s, "it appeared that 'vindictive prosecution' claims would be both common and successful." (20) Today, such claims are "rarely made and even more rarely succeed." (21) But the history is worth understanding and the concept worth renewing.


In 1974, the Supreme Court held that a defendant must be free to exercise his statutory and constitutional rights "without apprehension that the State will retaliate by substituting a more serious charge for the original one." (22) The Constitution requires that he be free of this apprehension even if the state has no "actual retaliatory motivation" in filing a higher charge. (23)

This holding seems to pose an obvious problem: If a defendant must not fear the possibility of higher charges in retaliation for his exercise of a legal right, how could a prosecutor possibly bring a higher charge if the defendant exercises his right to trial? How can the government use leverage to plea bargain?

In 1978, the Court recognized this problem, asserting that, "in the 'give-and-take' of plea bargaining," there simply could be "no ... element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer." (24) In unsatisfying fashion, it eviscerated the doctrine it had just created, effectively excepting the right to trial from those protected against prosecutorial retaliation.

This Part explains the history of vindictive prosecution doctrine. It begins with necessary background. Section I.A quickly explains the roots of plea bargaining law and practice in the United States. Section I.B then discusses the cases in which the idea of "vindictiveness" originated. In Section I.C, I tell the previously untold story of how the Court stumbled into the new doctrine of prosecutorial vindictiveness in hasty and ill-considered fashion, apparently due in large part to North Carolina's bungled management of the key case. I then explain in Section I.D how the Court responded to the practical consequences of its decision by swinging back to the other extreme-expansively protecting plea bargaining while failing to engage intellectually with the pressure it placed on the right to trial.

The instability of the doctrine reflects the tension between enabling orderly plea bargaining and protecting the constitutional right to jury trial. The Court's foundational efforts in this area of law failed to look for, let alone find, a middle ground to reasonably accommodate these competing interests.

A. A Note on the Development of Plea Bargaining

To provide context for the argument that follows, this Section offers a very short primer on the development of American plea bargaining and the relevant law. The purpose is to make clear that the current plea-dominated system (25) has deep historical roots and that plea bargaining's practical importance should have been clear to the Supreme Court when prosecutorial vindictiveness first came before it.

Well before the Warren Court's criminal procedure revolution, the rising crime rates of the 1960s and 1970s, or the increasing political salience of crime and public demand for law-and-order policies, plea bargaining was widespread in the United States.

John Langbein has explained that, through roughly the eighteenth century, the jury trial was a summary proceeding; as professional prosecution and the law of evidence developed in the nineteenth century, jury trials became resource-intensive affairs, and guilty pleas became an attractive alternative. (26) By the early twentieth century, a plea was the most typical means of conviction. In Manhattan and Brooklyn, for instance, eighty-five to ninety percent of felony convictions were obtained by plea in the early 1920s. (27) A number of cities established crime commissions and conducted studies in the 1920s, finding, to the "remarkable surprise" of many, that the overwhelming majority of convictions were obtained by plea. (28) This system remained in place in the intervening decades. In 1967, the President's crime commission similarly estimated that "as many as 90 percent" of defendants in some jurisdictions were convicted by plea. (29)

But, for virtually all of this time, plea bargaining was a kind of open legal secret, dominating the day-to-day administration of criminal justice without any formal recognition that it complied with the Constitution. In the late 1950s, it was very possible that the practice of negotiating to induce pleas might be declared entirely illegal. In 1957, a panel of the Fifth Circuit Court of Appeals held that plea bargains induced by prosecutorial promises of any kind were unlawful, only to be reversed by a three-to-two vote of the en banc court. (30) In an unusual move that may have been designed to prevent the Supreme Court from pronouncing unfavorably on the legality of plea bargaining, the Solicitor General admitted that the defendant's plea had been in error, making the case moot. (31) Later, in 1969, the Court hardly seemed sanguine about the idea of negotiating pleas: "[A] plea of guilty is more than an admission of conduct; it is a conviction. Ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats might be a perfect cover-up of unconstitutionality." (32)

In 1970, however, the Court explicitly acknowledged the "mutuality of advantage" that pleas offer the defendant and the government: the defendant "limit[s] the probable penalty" and can begin to serve his sentence immediately, while the state conserves "scarce judicial and prosecutorial resources" and "may more effectively attain the objectives of punishment" by imposing it swiftly. (33) The Court conceded that plea bargaining's prevalence and practicality did not necessarily make it constitutional-but then found it constitutional for essentially those reasons anyway. "[W]e cannot hold that it is unconstitutional," the majority wrote in Brady v. United States, "for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State ...." (34) Even though the defendant in Brady would have faced the death penalty if he did not accept the prosecutor's offer, the Court found that the prosecutorial inducement was insufficient to compromise the "voluntary" and "intelligent[]" nature of the plea. (35) Thus, alongside its companion cases limiting collateral review, (36) Brady established that the use of prosecutorial leverage to extract pleas from defendants was fundamentally permissible.

There were some good reasons for the Court to finally bless plea bargaining in this period. First, the skyrocketing crime rates of the 1960s (37) had produced more cases, and the emergence of crime as a high-salience political issue had led to an expansion of both substantive criminal law and policing, which, in turn, led to even more cases. (38) And second, the expanded procedural protections recently granted to defendants increased the number of issues to be litigated at trial and made it more difficult and costly for the government to prevail. (39) In Los Angeles, for instance, the average length of a criminal trial more than doubled between 1964 and 1968. (40) As a result, with massive caseloads and higher costs--and without a commensurate injection of resources--plea bargaining became, even more so than in the past, the only way to obtain convictions and keep the system functioning. (41)

Thus, while plea bargaining had long been the norm, it was even more of a necessity by the mid-1970s. As the story of prosecutorial vindictiveness will show, however, the Court was hardly consistent in keeping its practical importance in mind.

B. The Idea of Vindictiveness

The seeds of prosecutorial vindictiveness doctrine were planted on Chief Justice Warren's last day on the bench, when the Court handed down its decision in North Carolina v. Pearce. (42) Justice Stewart's opinion for the Court addressed two instances in which a judge had imposed a heavier sentence on a defendant who was retried for the same crime after successfully appealing his first conviction. Relying on the principle that the state may not impose unlawful conditions upon or penalize the exercise of constitutional rights, Pearce held that the Fourteenth Amendment's Due Process Clause "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." (43) Furthermore, the Court found that, "since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." (44) Pearce therefore established a presumption of vindictiveness when a judge imposed a harsher sentence the second time around after a defendant successfully challenged his initial conviction. (45)

In follow-up cases, the Court declined to apply the Pearce rule where a different judge or jury imposed the harsher subsequent sentence. (46) The Court reasoned that the second sentencing authority would have no "personal stake" in vindicating the initial decision by penalizing the defendant for appealing it, so there was no need for a presumption of vindictiveness. (47) One such case, Colten v. Kentucky, (48) addressed Kentucky's two-tiered justice system for misdemeanors, which enabled a person convicted in a limited-jurisdiction inferior court to receive a de novo trial in a higher court. The Court similarly noted that there would be no particular reason for the second judge, who was simply making a fresh determination of guilt or innocence, to punish the defendant for his dissatisfaction with the first verdict. (49) As such, a presumption of vindictiveness was unwarranted in a two-tiered system enabling de novo retrial as of right.

Pearce and Colten did not discuss whether the government's desire to punish the defendant for seeking a new trial could violate due process. In fact, these cases seem to have left the question open. On the one hand, the state might have a "stake" in penalizing the defendant for trying to undo its success in the first proceeding. And, as Justice Marshall pointed out in dissent in Colten, the Pearce rule aimed to address the "inherent ... danger" that the risk of a higher penalty could deter a defendant from exercising his right to appeal--a risk just as present from the government's conduct as from the judge's. (50) On the other hand, nothing in Pearce or Colten spoke directly to prosecutorial behavior at all. And the government's attempt to seek a higher sentence on retrial might not be "vindictive" in the same fashion as a judge's imposition of higher sentence on retrial. It was the court's prior decision--not the state's--that the defendant had successfully appealed, so the judge would have a more personal motive than the prosecutor to get back at the defendant out of spite.

Against this doctrinal backdrop, the problems posed by as-of-right de novo retrials soon returned to the Court.

C. From Blackledge ...

The best explanation for the doctrine of vindictive prosecution may be that Blackledge v. Perry, (51) the case that created it, was simply not supposed to be about vindictiveness at all.

1. Waiver

North Carolina prisoner Jimmy Seth Perry had been convicted of misdemeanor assault for his role in a jailhouse fight and had received a six-month sentence from a court of limited jurisdiction that handled misdemeanor cases. (52) Perry was entitled by North Carolina statute to a de novo trial in a higher court. When he filed his notice to seek one, the prosecutor charged him, on the same factual basis, with felony assault with intent to kill and inflict serious bodily injury. (53) Perry pled guilty to felony assault and received a longer sentence. (54)

After he had pled to the felony, Perry filed a habeas petition, which the district court eventually granted on the basis of double jeopardy, which was at issue because of the two-tiered criminal court system. It found that "double jeopardy is involved when a defendant is subjected to prosecution for a greater offense upon trial de novo in a higher Court, after appeal from a lower Court." (55) The district court reasoned that the state should only have one initial opportunity to bring the higher charge, lest the initial misdemeanor trial function as "little more than a proving ground" for the state's felony case. (56) The state also argued that Perry had waived his constitutional protection against double jeopardy by pleading guilty, but the district court rejected this argument. Double jeopardy, it found, is a "fundamental right" that could not be implicitly waived by a guilty plea because it "goes to the power of a Court to try a person." (57) That is, double jeopardy could not be waived by a plea because it undermined the very jurisdiction of the court that had entered the plea. The Fourth Circuit summarily affirmed. (58)

Thus, when Blackledge arrived at the Supreme Court, it was almost entirely about double jeopardy, and the litigants and the Court were focused on the issue of waiver. North Carolina's petition for certiorari presented only two questions for review, addressing double jeopardy and waiver. (59) The Supreme Court had recently held that a defendant who pled guilty could only challenge the voluntary and intelligent character of his plea, and not any independent constitutional violations that may have preceded it, in a federal habeas petition. (60) But there was a pre-existing split in the federal courts of appeals over whether double jeopardy could be waived like any other constitutional claim antecedent to a plea, or whether, as the Fourth Circuit thought, it was different because it went to the validity of the underlying indictment itself. (61) Thus, the Court had a good reason to take Perry's case: to determine whether double jeopardy claims fell within its new rule preventing collateral review of constitutional claims that were independent of otherwise valid guilty pleas.

The Court apparently took the case for this purpose. When the conference discussed the petition on October 1, 1973, six Justices voted to grant certiorari, presumably to vacate the Fourth Circuit's summary order; the liberal group of Justices Brennan, Douglas, and Marshall voted to deny it. (62) The only question, it seemed, was how far the Court should go in rolling back Perry's successful double jeopardy claim. The Justices favoring certiorari seemed to be split over whether to remand on the waiver issue in light of new precedent, reverse the Fourth Circuit on waiver, or find that there had been no double jeopardy violation at all. (63)

The outcome seemed clear. One law clerk predicted:
   This case is undoubtedly going to have to be vacated and remanded.
   The task of the conference will be to decide what instructions to
   give the lower courts on remand-simply to clarify the impact of a
   guilty plea [on waiver of constitutional claims] or to in addition
   speak to what the [district court] said about substantive
   constitutional issues. (64)

2. Stumbling into Vindictiveness

Ultimately, however, the Court declined to decide the double jeopardy questions. Applying Pearce, it instead sided with Perry on the ground that "the indictment on the felony charge constituted a penalty for exercising his statutory right to appeal, and thus contravened the Due Process Clause of the Fourteenth Amendment." (65)

The conference did an about-face when it met on February 22, 1974, three days after hearing argument. Justices Stewart and White, who had been inclined to reverse on the issue of double jeopardy but divided over how to do so, now argued for affirming the Fourth Circuit by finding a due process violation. (66) Justice Stewart described this as an "odd-ball" case, arguing that there had been no double jeopardy violation but that the defendant had a right not to be "hailed [sic] into higher court on an increased charge" because doing so would burden his right to appeal. (67) Justices White, Blackmun, and Marshall agreed that the case should be resolved on due process rather than double jeopardy grounds. (68)

So why would the Court use Perry's "odd-ball" case to extend the judicial vindictiveness rule from Pearce to prosecutorial conduct? It seems to have done so because North Carolina blundered into conceding the point at oral argument, which Assistant Attorney General Richard League handled for the state. In his handwritten notes from the bench, Justice Powell faulted League's "hopelessly weak" presentation. (69) League, who began by apologizing for the "shabby condition" in which his brief had arrived, (70) seemed not to contemplate the possibility that the state was vulnerable to a due process argument on the ground that the higher charge had retaliated against Perry's exercise of a legal right.

When Justice Marshall asked if Perry could have been indicted for a felony if he had not appealed, League answered that he could not have. (71) Marshall immediately followed by asking, "So, because he appealed, he was indicted?"

Remarkably, League answered, "I would say so, yes sir." (72) An audible snicker and an exclamation of "Thank you!" from an unknown party can be heard on the recording of the painful four-second silence that followed. (73) Perhaps belatedly realizing the significance of his admission, League attempted damage control, saying, "But I would not attach to it perhaps the same significance to it as Your Honor. This well could have been an event where they tried to get it out of the way down below." (74) It is unclear what he meant by this second sentence; a new question changed the subject as he trailed off. (75) Justice Marshall later read from the transcript of oral argument to support his position in conference that the Pearce vindictiveness rule applied to this case. (76)

Perry's counsel advanced his vindictiveness claim in relatively cursory fashion in his brief, and only in the context of a larger argument about double jeopardy. (77) The State essentially failed to discuss it at all; its one reference to Pearce was tangential. (78) When offered the opportunity at oral argument to engage with Perry's vindictiveness claim, League had only a weak response. League had been arguing that Perry had received a reduced sentence in exchange for his guilty plea to the felony charge, suggesting that his plea was knowing and intelligent and should have waived Perry's constitutional claims. Chief Justice Burger then asked: "Does that bring you up against the Pearce case, about increasing sentences in any way?" (79) League replied haltingly: "No, sir. I don't think Pearce is applicable to this case, by virtue of what was said in the Colten decision that the possibility of vindictive punishment does not occur sufficiently within the two-tier system to warrant the imposition of the prophylactic rule in Pearce." (80)

This was an accurate description of the holding in Colten, but it only applied to the possibility of vindictiveness by a different judge than the one who had initially heard the case before appeal. (81) League evidently failed to grasp that the logic of Pearce could potentially be extended to encompass a prosecutor's behavior. (82) Justice Stewart did just that in his majority opinion, finding that "the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case." (83) Prosecutors who seek to conserve resources have an incentive to discourage persons convicted of misdemeanors from obtaining new trials. (84) If they are permitted to increase the charge, they will be able to "insure that only the most hardy defendants" will exercise their right. (85)

And yet, just as League failed to realize that the Court might extend Pearce to prosecutors, the Court itself seemed not to recognize that this extension would implicate the practice of plea bargaining. Indeed, the majority only broached the topic of plea bargaining to explain why Perry had not waived his claim. Perry had been denied due process by the "very initiation of the proceedings against him," the Court argued, so he could not forfeit his due process claim by pleading guilty to a charge that was unconstitutionally brought to begin with. (86) Justice Rehnquist's dissenting opinion, meanwhile, chided the majority for discouraging prosecutors from offering "plea bargains." (87) Permitting defendants to challenge guilty pleas on collateral review, he reasoned, would undermine the finality of pleas and therefore reduce prosecutors' incentives to bargain for them. (88) In a separate dissent that Justice Powell drafted but ultimately decided not to publish, he expressed a similar view that "the efficacious administration of justice demands that guilty pleas, made voluntarily and with the advice of counsel, be respected as a definitive resolution of antecedent issues." (89) But none of the discussion of plea bargaining dealt with the effect of the vindictive prosecution rule itself. The record simply reflects no awareness of the policy consequences of the decision.

The Court's resolution of Blackledge was therefore not only unexpected, but also inadequate for failing to anticipate the difficulties it would soon create. We can only speculate whether the former caused the latter. Of course, there is a reason why the Court has the parties brief and argue the questions it considers, and we might reasonably hypothesize that more thorough consideration would have alerted the Justices to this issue. (90) We might also wonder why the Court did not choose to set the case for reargument, which it occasionally does when it anticipates that it may decide the case on different grounds than the parties initially contemplated. (91) There is no way to know whether better preparation would have helped the Court foresee the problems that plea bargaining would cause for its new extension of vindictiveness doctrine to prosecutors. But it seems fair to conclude that the Court cannot have improved the quality of its reasoning by abruptly changing course.

In the end, then, the Court's decision in Blackledge created, in response to the contingencies of this "odd-ball case," a new and undertheorized constitutional rule that the Court had not originally intended to develop. Justice Stewart explained from the bench: "We agree with the Court of Appeals that it was a violation of the Fourteenth Amendment for the State to up the ante after the respondent appealed his original misdemeanor conviction." (92) Left wholly unconsidered was whether it would also violate the Fourteenth Amendment to up the ante after the defendant went to trial.

D. ... To Bordenkircher

Four years later, the Court confronted a case in which the prosecutor's behavior seemed indistinguishable from that in Blackledge--except that the defendant had invoked a constitutional rather than a statutory right, which should only have strengthened his claim. Instead, the pendulum swung back to the other extreme, as the Court, faced with a conflict of its own making, gutted its protection of the right to trial in an effort to protect plea bargaining.

Blackledge generated a modest immediate response. The most extensive initial scholarly discussion focused on the holding that Perry, despite pleading guilty, did not waive his double jeopardy and due process claims. (93) But Blackledge did lead to a wide variety of vindictive prosecution claims in the following years. Some closely followed its model, challenging a prosecutor's decision to bring more severe charges after a defendant successfully appealed his initial conviction. (94) Some shifted into the pretrial context, arguing that a prosecutor could not bring higher charges in an effort to achieve a particular outcome before trial. (95) These attempts to bring a range of vindictive prosecution claims, and the fact that the Blackledge opinion offered little additional guidance on what constituted a "realistic likelihood of 'vindictiveness,'" (96) led some to conclude that the new rule of vindictive prosecution was "difficult to apply." (97)

Paul Hayes was surely not the only defendant to claim vindictiveness when a prosecutor brought more or higher charges after he declined to plead guilty. (98) Hayes had been indicted on a felony charge of forging an $88.30 check and faced two to ten years in prison. (99) The prosecutor offered him a five-year sentence and threatened that, if Hayes did not plead guilty, he would be charged under Kentucky's Habitual Criminal Act and subject to a mandatory life sentence because he had two prior felony convictions. (100) Hayes refused the deal, the prosecutor increased the charge, and Hayes lost at trial and received a life sentence. (101)

Hayes's federal habeas petition alleged that his "indictment and conviction under the Habitual Criminal Statute was vindictively sought by the Commonwealth of Kentucky in this case." (102) The district court was unpersuaded. It easily identified the wide-ranging and, from its perspective, undesirable practical implications of Hayes's argument: "If prosecutors were precluded from seeking conviction of more serious offenses following the rejection by defendants of the opportunity to plead guilty to lesser offenses, the entire concept of plea bargaining would be effectively destroyed ...." (103) Hayes had stumbled into a confrontation with the unconsidered policy consequences of Blackledge.

On appeal, the Sixth Circuit disagreed with the district court's policy analysis. While Kentucky "urges that the entire concept of plea bargaining will be destroyed if prosecutors are not allowed to seek convictions on more serious charges if defendants refuse to plead guilty," Judge McCree wrote, "[w]e do not agree." (104) The court of appeals held that a prosecutor may "offer a defendant concessions relating to prosecution under an existing indictment," i.e., drop some charges or reduce the sentence, in the course of plea negotiations. (105) By bringing the initial indictment, however, the prosecutor has made a "discretionary determination that the interests of the state are served by not seeking more serious charges." (106) If he were to increase the charges after plea negotiations broke down, therefore, "a strong inference is created" that he did so out of vindictiveness, since he had already determined that the lower charge was appropriate. (107)

Thus, the stakes of the case quickly crystallized. In light of the Court's recent Brady line of decisions, which had finally blessed plea bargaining as not only practically necessary but legitimate, (108) could the practice be sustained if prosecutors could not penalize defendants' exercise of the right to trial? And, if not, would it make a meaningful constitutional difference if prosecutors initially brought higher charges and then enticed the defendant to forfeit his right in exchange for a reduction, rather than adding higher charges to retaliate against the defendant for exercising it? Or, as Kentucky bluntly and pragmatically framed the issue:
   This case involves a current bargaining practice used in plea
   discussions .... [T]he realit[y] of plea discussions involving
   charges unbrought but legally susceptible of being brought is that
   it is entirely appropriate, legally and constitutionally, for the
   prosecutor to offer the accused not to seek indictments on the
   additional charges for a plea of guilty to a charge already

   The inevitable effect of plea bargaining is to discourage the
   assertion of the Fifth Amendment right not to plead guilty and to
   deter the exercise of the Sixth Amendment right to demand a jury
   trial. (109)

Thus, Bordenkircher represented a collision between "two separate and inherently conflicting lines of case law"--prohibiting prosecutorial vindictiveness and establishing the legitimacy of plea bargaining. (110) But, given the far broader practical significance of the latter, and the former's utter failure to account for it, the real question was not which would prevail, but how completely the Court would bend vindictive prosecution doctrine to meet the needs of plea bargaining.

The answer: almost entirely. By a five-to-four vote, the Court rejected the Sixth Circuit's distinction between offering to reduce a charge if the defendant accepted a plea and threatening to increase a charge if the defendant refused a plea. "As a practical matter," Justice Stewart explained, these two sequences were "no different." (111) Justice Blackmun, joined by Justices Marshall and Brennan, endorsed the Sixth Circuit's sequencing rule in dissent. Arguing that "[p]rosecutorial vindictiveness in any context is still prosecutorial vindictiveness," (112) Justice Blackmun conceded that, practically speaking, it may "make[] little difference how this case, now that it is here, is decided." (113) Aggressive prosecutors might simply bring harsher indictments up front. Nonetheless, Justice Blackmun thought it preferable as a policy matter to "hold the prosecution to the charge it was originally content to bring and to justify in the eyes of its public." (114)

Justice Powell, meanwhile, struggled deeply with the case, which he found "terribly unjust," (115) and waffled on his position. He initially criticized the Sixth Circuit's opinion on policy grounds, fearing that it would compel prosecutors to indict for the maximum possible penalty, creating a larger gap to bridge with defendants and thereby inhibiting plea bargaining. (116) At conference after argument, he sided with the majority and voted to reinstate Hayes's conviction. (117) He wrote in his handwritten notes that he agreed with Justice Stewart, who had commented that "[p]lea bargaining, by definition, involved 'threats' as to consequences of not accepting a proposal. There may be a point (deception, fraud) beyond which prosecutor may not go. But not here."(118) Ultimately, however, while noting that he "agree[d] with much of the Court's opinion," (119) Justice Powell dissented separately and argued that the prosecutor in this "exceptional" case had acknowledged vindictiveness. (120) Because it could be inferred from the prosecutor's initial charging decision that he had "deemed it unreasonable and not in the public interest" to subject Hayes to a life sentence, this was the rare instance in which the scales of plea bargaining had become "so unevenly balanced as to arouse suspicion." (121)

The Bordenkircher result has been discussed by many commentators and strongly criticized by some of them. (122) It is not my purpose to review the criticism here, and the propriety of the habitual offender statute itself is another matter entirely. But a couple of Bordenkircher's particular shortcomings demonstrate just how wildly the Court swung the pendulum back in favor of the practical imperatives of plea bargaining, while thoroughly discounting the value of the trial right and the need to insulate its exercise from retaliation.

First, the majority's assertion that "in the 'give-and-take' of plea bargaining, there is no ... element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer" (123) simply does not withstand analytical scrutiny. For one thing, Perry was just as free not to appeal as Hayes was not to plead guilty. And the defendant's ability to make a voluntary choice cannot explain why there is no element of retaliation. That two parties are engaged in a give-and-take negotiation does not preclude one party from attempting to punish the other for walking away from the table. The chance that both parties might benefit, moreover, has no logical bearing on whether one might act with retaliatory motive. It simply does not follow from the fact that plea bargaining offers a "mutuality of advantage" (124) that there can be no "element of punishment or retaliation" by the prosecutor. What the Court really seems to have meant is that, because plea bargaining offers a mutuality of advantage to both parties, there is no reason to police it for punishment or retaliation. Plea bargaining is a permissible practice, so the prosecutor's desire to achieve a plea is a permissible motive for his discretionary charging decision. The concern for the defendant's legally protected right that animated Blackledge was simply absent from the equation four years later.

Second, Bordenkircher underhandedly rejected Blackledge's basic view that a defendant must be able to exercise his rights free from the fear of retaliation, whether or not the prosecutor has an actual retaliatory motive. (125) Justice Stewart reinterpreted the doctrine to "emphasize[]" that due process is not violated simply by the "possibility that a defendant might be deterred from the exercise of a legal right," but rather by the "danger that the State might be retaliating against the accused." (126) This is plainly not what Blackledge held. (127) Without explicitly acknowledging it, then, and without openly attempting to reconcile the competing imperatives of protecting plea bargaining and vindicating the importance of the right to trial, the Court essentially abandoned the doctrine it had established several years before.


So far, this Note has explained the accidental origins of vindictive prosecution doctrine and--perhaps as a result of those origins--the doctrine's failure to strike, or even seek, a balance between the practical necessity of plea bargaining and the constitutional value of the jury trial. This underlying tension between trial and plea remains vital today. Now, however, the pressing question is not how to permit and recognize plea bargaining, but how to constrain and regulate it. In this Part, I argue that the idea of vindictive prosecution, understood in a way that more closely reflects what we ordinarily mean by vindictiveness, could prove newly useful. Section II.A explains recent doctrinal innovation about pleas. It argues that the Court is seeking more and more to regulate plea bargaining and is justifying its actions on the ground that trials are increasingly irrelevant. It has come to view the terms of a "standard" plea to a given offense as the criminal justice system's "true" outcome. Nonetheless, the Court has acted against a backdrop of doctrine and constitutional values that still presume the importance of the right to trial. As a result, the Court has only been able to regulate plea bargaining indirectly and has not imposed any substantive limits on prosecutorial discretion itself.

Section II.B proposes and defends a standard that would prohibit prosecutors from acting with the intent of punishing a defendant's exercise of his right to trial as a wrong. Enforced through an evidentiary presumption, such a standard would allow for some substantive regulation of prosecutors' charging discretion. But it would do so for the sake of protecting the right to trial, not on the basis of its insignificance. Among other advantages, then, this revitalized vindictive prosecution doctrine would partly reconcile the competing values that the old vindictive prosecution doctrine could not accommodate.
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Title Annotation:Introduction into II. Bringing Vindictiveness Back, p. 1014-1040
Author:Lieb, Doug
Publication:Yale Law Journal
Date:Jan 1, 2014
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