434 U.S. 357 (1978)
Paul Lewis Hayes was indicted by a Fayette County, Ky., grand jury on a charge of uttering a forged instrument in the amount of $88.30. This offense was then punishable by a term of 2 to 10 years in prison.1 After arraignment, Hayes, his retained counsel, and the Commonwealth’s Attorney met in the presence of the Clerk of the Court to discuss a possible plea agreement.2
During these conferences the prosecutor offered to recommend a sentence of five years in prison if Hayes would plead guilty to the indictment. He also said that if Hayes did not plead guilty, he would return to the grand jury to seek an indictment under the Kentucky Habitual Criminal Act. This would subject Hayes to a mandatory sentence of life imprisonment by reason of his two prior felony convictions.3
Hayes chose not to plead guilty. The prosecutor obtained an indictment charging him under the Habitual Criminal Act.4 The recidivist charge was fully justified by the evidence. The prosecutor possessed this evidence at the time of the original indictment. Hayes’ refusal to plead guilty led to the habitual criminal indictment.5 A jury found Hayes guilty on the principal charge. In a separate proceeding the jury found that he had twice before been convicted of felonies. He was sentenced to a life term in the penitentiary.6
The Kentucky Court of Appeals rejected Hayes’ constitutional objections to the enhanced sentence in an unpublished opinion.7 On Hayes’ petition for a federal writ of habeas corpus, the United States District Court for the Eastern District of Kentucky denied the writ.8 The Court of Appeals for the Sixth Circuit reversed the District Court’s judgment.9 The Supreme Court granted certiorari to consider a constitutional question of importance in the administration of criminal justice.10
Whether the Due Process Clause of the Fourteenth Amendment is violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged?11
The Due Process Clause prohibits state retaliation against a defendant for exercising a legal right to attack a conviction.12 This principle was established in North Carolina v. Pearce and Blackledge v. Perry. The principle does not extend to the give-and-take of plea bargaining.13 The defendant remains free to accept or reject the prosecutor's offer.14 The more serious charge must be supported by probable cause.15
No. The prosecutor's threat occurred during plea negotiations.16 Hayes was fully informed of the consequences when he decided to plead not guilty.17 The recidivist charge was justified by evidence already in the prosecutor's possession.18 The prosecutor's conduct amounted to no more than presenting the defendant with the choice between forgoing trial or facing charges on which he was plainly subject to prosecution.19
The Due Process Clause of the Fourteenth Amendment is not violated by the prosecutor's conduct in this case.20
Related opinions on this issue
Justice Blackmun dissented on the ground that the majority departed from the principles of North Carolina v. Pearce and Blackledge v. Perry.21 He noted that the prosecutor admitted the sole reason for the new indictment was to discourage the respondent from exercising his right to a trial.22 In his view, vindictiveness exists to the same extent here as in those earlier cases.23
Due process requires the prosecution to justify its action on some basis other than discouraging the exercise of the right to trial.24 He would have affirmed the judgment of the Court of Appeals.25
Justice Powell dissented. He concluded that the prosecutor's conduct denied due process on the specific facts of this case.26 The prosecutor initially made a responsible judgment not to seek the habitual criminal indictment.27
This was due to the minor nature of the $88.30 forgery and the circumstances of the prior convictions.28 The escalation occurred solely because of Hayes' insistence on going to trial.29 This amounted to a deliberate penalty for the exercise of constitutional rights.30
He would have affirmed the Court of Appeals.31