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

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. The reality is that upwards of 95 percent of felony convictions are secured by the accused’s own admission of guilt. These admissions of guilt in open court are the consequence of the controversial but longstanding practice of plea bargaining. The idea is simple: a criminal defendant admits guilt and thus foregoes a formal trial in exchange for Sentencing leniency. Whereas the defendant benefits by the lighter punishment, society benefits by reducing the time and expense in adjudicating guilt. But are there limits to the pressure that the prosecution may apply to a defendant to induce a guilty plea?

Bordenkircher v. Hayes addresses that issue. The prosecutor offered to recommend a sentence of five years imprisonment in exchange for defendant Hayes’s guilty plea to an indictment charging forgery. The prosecutor warned that he would secure another indictment if Hayes refused the plea offer, an indictment that would charge Hayes with being an ‘‘habitual offender,’’ thus ramping up Hayes’s Sentencing exposure to life imprisonment. The prosecutor’s motives were transparent and beyond dispute: he threatened Hayes with life imprisonment to induce him to forego his constitutional right to a jury trial. Hayes refused to plead guilty, and the prosecutor followed through on his threat, charging Hayes under the Kentucky Habitual Criminal Act. When Hayes was convicted, the judge sentenced Hayes to life imprisonment, as required by the habitual offender statute.

The Supreme Court found nothing improper with a prosecutor threatening to send a defendant to prison for life if that defendant refuses to accept a plea bargain of five years’ imprisonment. The Court rooted its conclusion in the fact that plea bargaining is a form of bartering for rights, and prosecutors may legitimately drive hard bargains with the sole motive ‘‘to persuade the defendant to forgo his right to plead not guilty.’’ That no one—not even the prosecutor himself—believed life imprisonment was the appropriate sentence for Paul Lewis Hayes was thus irrelevant to the issue of the prosecutor’s ratcheting up the charges in reaction to Hayes’s refusal to plead guilty. Bordenkircher marks the triumph of plea bargaining in our system of criminal justice.

DAN R. WILLIAMS

References and Further Reading

• Fisher, George, Plea Bargaining’s Triumph, Yale Law Journal 109 (2000): 857
• Schulhofer, Stephen J., Is Plea Bargaining Inevitable? Harvard Law Review 97 (1984): 1037

See also Guilty Plea; Due Process; Plea Bargaining