Bordenkircher V. Hayes: The Rise of Plea Bargaining and the Decline of the Rule of Law

Abstract

Bordenkircher v. Hayes is not among the most famous cases in American criminal procedure, but it may be among the most important. Not so much for what happened - the Supreme Court held, unsurprisingly, that plea bargaining did not amount to "vindictive prosecution" - as for what didn't happen. Bordenkircher was tailor-made for a holding that prosecutors cannot threaten criminal punishment that has not been applied, at least occasionally, to similarly situated defendants. That holding would have spared Paul Hayes a life sentence for petty theft plus two prior felony convictions. It would have spared many thousands of defendants guilty pleas produced by what amounts to legalized extortion. It probably would have spared some innocent defendants criminal convictions. In retrospect, Bordenkircher appears to be one of the great missed opportunities of American constitutional law.