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

Annotate this Case
  • Syllabus  | 
  • Case

U.S. Supreme Court

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

Bordenkircher v. Hayes

No. 76-1334

Argued November 9, 1977

Decided January 18, 1978

434 U.S. 357


The Due Process Clause of the Fourteenth Amendment is not violated when.a state prosecutor carries out a threat made during plea negotiations to have the accused reindicted on more serious charges on which he is plainly subject to prosecution if he does not plead guilty to the offense with which he was originally charged. Pp. 434 U. S. 360-365.


"[T]he guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned."

Blackledge v. Allison, 431 U. S. 63, 431 U. S. 71. Pp. 434 U. S. 361-362

(b) Though to punish a person because he has done what the law allows violates due process, see North Carolina v. Pearce, 395 U. S. 711, 395 U. S. 738, there is no such element of punishment in the "give-and-take" of plea bargaining as long as the accused is free to accept or reject the prosecutor's offer. Pp. 434 U. S. 362-364.

(c) This Court has accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty, and, in pursuing that course here, the prosecutor did not exceed constitutional bounds. Pp. 434 U. S. 364-365.

547 F.2d 42, reversed.

STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, and STEVENS, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, .JJ., joined, post, p. 434 U. S. 365. POWELL, J., filed a dissenting opinion, post, p. 434 U. S. 368.

Page 434 U. S. 358

Primary Holding

The threat of prosecution under a recidivist statute is a permissible tactic for a prosecutor to use during plea bargaining.


Following two prior felony convictions, Hayes was charged with a third felony consisting of forgery. This offense carried a maximum sentence of 10 years, but the prosecutor offered to recommend five years if Hayes pleaded guilty. When Hayes refused, the prosecutor told him that he could be charged under the three-strikes law in the state, which could lead to a life sentence, if he did not plead guilty. Hayes again refused and was convicted and sentenced to life imprisonment under the three-strikes law. His habeas corpus motion was denied by the federal district court but granted by the appellate court.



  • Potter Stewart (Author)
  • Warren Earl Burger
  • Byron Raymond White
  • William Hubbs Rehnquist
  • John Paul Stevens

Defendants have constitutional protections against vindictive retaliation by prosecutors for properly exercising their constitutional rights. However, plea bargaining is simply a negotiation without the involvement of punishment or retaliation because defendants have the freedom to choose whether to accept a prosecutor's offer. The fact that some difficult choices may confront defendants does not lead to an inference of abuse.


  • Harry Andrew Blackmun (Author)
  • William Joseph Brennan, Jr.
  • Thurgood Marshall

The prosecution should not have been allowed to file the new charge based on the three-strikes law because this was a direct and vindictive response to the defendant refusing the first plea bargaining offer. It would have been permitted to pursue the highest possible sentence for the felony charge.


  • Lewis Franklin Powell, Jr. (Author)

The test should be whether the charge of which the defendant was convicted would have been brought before the start of the plea bargaining process. (Powell essentially turned Blackmun's case-specific analysis into a broader rule.)

Case Commentary

Similar statutes later were struck down under the Eighth Amendment, since they imposed a punishment disproportionate to the crime.

Disclaimer: Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site. Justia makes no guarantees or warranties that the annotations are accurate or reflect the current state of law, and no annotation is intended to be, nor should it be construed as, legal advice. Contacting Justia or any attorney through this site, via web form, email, or otherwise, does not create an attorney-client relationship.

Disclaimer: Official Supreme Court case law is only found in the print version of the United States Reports. Justia case law is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.