JUSTICE STEVENS delivered the opinion of the Court.
This case involves presumptions. The question presented is whether a presumption that has been used to evaluate a judicial or prosecutorial response to a criminal defendant's exercise of a right to be retried after he has been convicted
After the respondent requested a trial by jury on pending misdemeanor charges, he was indicted and convicted on a felony charge. Believing that the sequence of events gave rise to an impermissible appearance of prosecutorial retaliation against the defendant's exercise of his right to be tried by jury, the United States Court of Appeals for the Fourth Circuit reversed the felony conviction. 637 F.2d 250. Because this case presents an important question concerning the scope of our holdings in North Carolina v. Pearce, 395 U.S. 711, and Blackledge v. Perry, 417 U.S. 21, we granted the Government's petition for certiorari. 454 U.S. 1079.
Respondent Goodwin was stopped for speeding by a United States Park Policeman on the Baltimore-Washington Parkway. Goodwin emerged from his car to talk to the policeman. After a brief discussion, the officer noticed a clear plastic bag underneath the armrest next to the driver's seat of Goodwin's car. The officer asked Goodwin to return to his car and to raise the armrest. Respondent did so, but as he raised the armrest he placed the car into gear and accelerated rapidly. The car struck the officer, knocking him first onto the back of the car and then onto the highway. The policeman returned to his car, but Goodwin eluded him in a highspeed chase.
The following day, the officer filed a complaint in the District Court charging respondent with several misdemeanor and petty offenses, including assault. Goodwin was arrested and arraigned before a United States Magistrate. The Magistrate set a date for trial, but respondent fled the jurisdiction. Three years later Goodwin was found in custody in Virginia and was returned to Maryland.
Upon his return, respondent's case was assigned to an attorney from the Department of Justice, who was detailed
The case was transferred to the District Court and responsibility for the prosecution was assumed by an Assistant United States Attorney. Approximately six weeks later, after reviewing the case and discussing it with several parties, the prosecutor obtained a four-count indictment charging respondent with one felony count of forcibly assaulting a federal officer and three related counts arising from the same incident.
Respondent moved to set aside the verdict on the ground of prosecutorial vindictiveness, contending that the indictment on the felony charge gave rise to an impermissible appearance of retaliation. The District Court denied the motion, finding that "the prosecutor in this case has adequately dispelled any appearance of retaliatory intent."
To punish a person because he has done what the law plainly allows him to do is a due process violation "of the most basic sort." Bordenkircher v. Hayes, 434 U.S. 357, 363. In a series of cases beginning with North Carolina v. Pearce and culminating in Bordenkircher v. Hayes, the Court has recognized this basic — and itself uncontroversial — principle. For while an individual certainly may be penalized for violating the law, he just as certainly may not be punished for exercising a protected statutory or constitutional right.
The imposition of punishment is the very purpose of virtually all criminal proceedings. The presence of a punitive
In North Carolina v. Pearce, the Court held that neither the Double Jeopardy Clause nor the Equal Protection Clause prohibits a trial judge from imposing a harsher sentence on retrial after a criminal defendant successfully attacks an initial conviction on appeal. The Court stated, however, that "[i]t can hardly be doubted that it would be a flagrant violation [of the Due Process Clause] of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside." 395 U. S., at 723-724. The Court continued:
In order to assure the absence of such a motivation, the Court concluded:
In sum, the Court applied a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.
In reviewing Perry's felony conviction and increased sentence,
The Court held that the opportunities for vindictiveness in the situation before it were such "as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case." Ibid. It explained:
The Court emphasized in Blackledge that it did not matter that no evidence was present that the prosecutor had acted in bad faith or with malice in seeking the felony indictment.
Both Pearce and Blackledge involved the defendant's exercise of a procedural right that caused a complete retrial after he had been once tried and convicted. The decisions in these cases reflect a recognition by the Court of the institutional bias inherent in the judicial system against the retrial of issues that have already been decided. The doctrines of stare decisis, res judicata, the law of the case, and double jeopardy all are based, at least in part, on that deep-seated bias.
In Bordenkircher v. Hayes, 434 U.S. 357, the Court for the first time considered an allegation of vindictiveness that arose in a pretrial setting. In that case the Court held that the Due Process Clause of the Fourteenth Amendment did not prohibit a prosecutor from carrying out a threat, made during plea negotiations, to bring additional charges against an accused who refused to plead guilty to the offense with which he was originally charged. The prosecutor in that case had explicitly told the defendant that if he did not plead guilty and "save the court the inconvenience and necessity of a trial" he would return to the grand jury to obtain an additional charge that would significantly increase the defendant's potential punishment.
In finding no due process violation, the Court in Bordenkircher considered the decisions in Pearce and Blackledge, and stated:
The Court stated that the due process violation in Pearce and Blackledge "lay not in the possibility that a defendant might be deterred from the exercise of a legal right . . . but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction." 434 U. S., at 363.
The Court held, however, that there was no such element of punishment in the "give-and-take" of plea negotiation, so long as the accused "is free to accept or reject the prosecution's offer." Ibid. The Court noted that, by tolerating and encouraging the negotiation of pleas, this Court had accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his constitutional right to stand trial. The Court concluded:
The outcome in Bordenkircher was mandated by this Court's acceptance of plea negotiation as a legitimate process.
This case, like Bordenkircher, arises from a pretrial decision to modify the charges against the defendant. Unlike Bordenkircher, however, there is no evidence in this case that could give rise to a claim of actual vindictiveness; the
There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor's assessment of the proper extent of prosecution may not have crystallized. In contrast, once a trial begins — and certainly by the time a conviction has been obtained — it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.
In addition, a defendant before trial is expected to invoke procedural rights that inevitably impose some "burden" on the prosecutor. Defense counsel routinely file pretrial motions to suppress evidence; to challenge the sufficiency and form of an indictment; to plead an affirmative defense; to request psychiatric services; to obtain access to government files; to be tried by jury. It is unrealistic to assume that a prosecutor's probable response to such motions is to seek to penalize and to deter. The invocation of procedural rights is an integral part of the adversary process in which our criminal justice system operates.
Thus, the timing of the prosecutor's action in this case suggests that a presumption of vindictiveness is not warranted.
The nature of the right asserted by the respondent confirms that a presumption of vindictiveness is not warranted in this case. After initially expressing an interest in plea negotiation, respondent decided not to plead guilty and requested a trial by jury in District Court. In doing so, he forced the Government to bear the burdens and uncertainty of a trial. This Court in Bordenkircher made clear that the mere fact that a defendant refuses to plead guilty and forces the government to prove its case is insufficient to warrant a presumption that subsequent changes in the charging decision
We cannot agree. The distinction between a bench trial and a jury trial does not compel a special presumption of prosecutorial vindictiveness whenever additional charges are brought after a jury is demanded. To be sure, a jury trial is more burdensome than a bench trial. The defendant may challenge the selection of the venire; the jury itself must be impaneled; witnesses and arguments must be prepared more carefully to avoid the danger of a mistrial. These matters are much less significant, however, than the facts that before either a jury or a judge the State must present its full case against the accused and the defendant is entitled to offer a full defense. As compared to the complete trial de novo at issue in Blackledge, a jury trial — as opposed to a bench trial — does not require duplicative expenditures of prosecutorial resources before a final judgment may be obtained. Moreover, unlike the trial judge in Pearce, no party is asked "to do over what it thought it had already done correctly."
In declining to apply a presumption of vindictiveness, we of course do not foreclose the possibility that a defendant in an appropriate case might prove objectively that the prosecutor's charging decision was motivated by a desire to punish him for doing something that the law plainly allowed him to do.
The judgment of the Court of Appeals is reversed. The
It is so ordered.
JUSTICE BLACKMUN, concurring in the judgment.
Like JUSTICE BRENNAN, I believe that our precedents mandate the conclusion that "a realistic likelihood of `vindictiveness' " arises in this context. Blackledge v. Perry, 417 U.S. 21, 27 (1974). The Assistant United States Attorney responsible for increasing the charges against respondent was aware of the initial charging decision; he had the means available to discourage respondent from electing a jury trial in District Court; he had a substantial stake in dissuading respondent from exercising that option; and he was familiar with, and sensitive to, the institutional interests that favored a trial before the Magistrate.
Moreover, I find no support in our prior cases for any distinction between pretrial and post-trial vindictiveness. As I have said before: "Prosecutorial vindictiveness in any context is still prosecutorial vindictiveness. The Due Process Clause should protect an accused against it, however it asserts itself." Bordenkircher v. Hayes, 434 U.S. 357, 368 (1978) (dissenting opinion). And, as JUSTICE BRENNAN points out, Bordenkircher does not dictate the result here. In fact, in Bordenkircher the Court expressly distinguished and left unresolved cases such as this one, "where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original [charges] had ended with the defendant's insistence on pleading not guilty." Id., at 360.
The Court's ruling in Bordenkircher did not depend on a distinction between the pretrial and post-trial settings: rather, the Court declined to apply its prior opinions in Blackledge and North Carolina v. Pearce, 395 U.S. 711 (1969), because those cases involved "the State's unilateral imposition of a penalty," rather than " `the give-and-take negotiation common in plea bargaining.' " 434 U. S., at
Adopting the prophylactic rule of Pearce and Blackledge in this case will not, as the Court would insist, undercut "the broad discretion entrusted to [the prosecutor] to determine the extent of the societal interest in prosecution." Ante, at 382. "[T]he prosecutor initially `makes a discretionary determination that the interests of the state are served by not seeking more serious charges.' " Bordenkircher v. Hayes, 434 U. S., at 367 (dissenting opinion), quoting Hayes v. Cowan, 547 F.2d 42, 44 (CA6 1976). Moreover, the Due Process Clause does not deprive a prosecutor of the flexibility to add charges after a defendant has decided not to plead guilty and has elected a jury trial in District Court — so long as the adjustment is based on "objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original" charging decision. North Carolina v. Pearce, 395 U. S., at 726. In addition, I believe that the prosecutor adequately explains an increased charge by pointing to objective information that he could not reasonably have been aware of at the time charges were initially filed. Cf. ante, at 381.
Because I find that the Assistant United States Attorney's explanation for seeking a felony indictment satisfies these standards, see ante, at 371, n. 2, I conclude that the Government has dispelled the appearance of vindictiveness and, therefore, that the imposition of additional charges did not violate respondent's due process rights. Accordingly, I concur in the judgment.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
In Blackledge v. Perry, 417 U.S. 21 (1974), this Court held that the Due Process Clause prohibits a prosecutor from responding
The salient facts of this case are quite simple. Respondent was originally charged with several petty offenses and misdemeanors — speeding, reckless driving, failing to give aid at the scene of an accident, fleeing from a police officer, and assault by striking a police officer — arising from his conduct on the Baltimore-Washington Parkway. Assuming that respondent had been convicted on every count charged in this original complaint, the maximum punishment to which he conceivably could have been exposed was fines of $3,500 and 28 months in prison.
Respondent's demand required that the case be transferred from the Magistrate's Court in Hyattsville to the District Court in Baltimore, and that the prosecution be reassigned to an Assistant United States Attorney, who was authorized to prosecute cases in the District Court. The new prosecutor sought and obtained a second, four-count indictment, in which the same conduct originally charged as petty-offense and misdemeanor counts was now charged as a misdemeanor and two felonies: assaulting, resisting, or impeding a federal officer with a deadly weapon, and assault with a dangerous weapon. If we assume (as before) that respondent was convicted on all of these charges, his maximum exposure to punishment had now become fines of $11,500 and 15 years in prison.
The Court attempts to denigrate respondent's claim by asserting that this case "involves presumptions," ante, at 369, and by arguing that "there is no evidence in this case that could give rise to a claim of actual vindictiveness," ante, at 380 (emphasis in original). By casting respondent's claim in terms of a "mere" legal presumption, the Court hopes to make that claim appear to be unreal or technical. But such an approach is contrary to the letter and spirit of Blackledge. There we focused upon the accused's "apprehension of . . . retaliatory motivation," 417 U. S., at 28, and we held that the Due Process Clause is violated when situations involving increased punishment "pose a realistic likelihood of `vindictiveness,' " id., at 27. In such situations, the criminal defendant's apprehension of retaliatory motivation does not amount to an unreal or technical violation of his constitutional rights. On the contrary, as we recognized in North Carolina v. Pearce, 395 U.S. 711, 725 (1969), "the fear of such vindictiveness may unconstitutionally deter a defendant's exercise" of his rights.
The Court does not contend that Blackledge is inapplicable to instances of pretrial as well as post-trial vindictiveness. But after examining the record before us for objective indications of such vindictiveness, the Court concludes, ante, at 382, that "a presumption of vindictiveness is not warranted in this case." With all respect, I disagree both with the Court's conclusion and with its reasoning. In my view, the question here is not one of "presumptions." Rather, I would analyze respondent's claim in the terms employed by our precedents. Did the elevation of the charges against respondent "pose a realistic likelihood of `vindictiveness?' " See Blackledge v. Perry, 417 U. S., at 27. Is it possible that "the fear of such vindictiveness may unconstitutionally deter" a person in respondent's position from exercising his statutory and
The Court suggests, ante, at 383, that the distinction between a bench trial and a jury trial is unimportant in this context. Such a suggestion is demonstrably fallacious. Experienced criminal practitioners, for both prosecution and defense, know that a jury trial entails far more prosecutorial work than a bench trial. Defense challenges to the potential-juror array, voir dire examination of potential jurors, and suppression hearings all take up a prosecutor's time before a jury trial, adding to his scheduling difficulties and caseload. More care in the preparation of his requested instructions, of his witnesses, and of his own remarks is necessary in order to avoid mistrial or reversible error. And there is always the specter of the "irrational" acquittal by a jury that is unreviewable on appeal. Thus it is simply inconceivable that a criminal defendant's election to be tried by jury would be a matter of indifference to his prosecutor. On the contrary, the prosecutor would almost always prefer that the defendant waive such a "troublesome" right. And if the defendant refuses to do so, the prosecutor's subsequent elevation of the charges against the defendant manifestly poses a realistic likelihood of vindictiveness.
The truth of my conclusion, and the patent fallacy of the Court's, is particularly evident on the record before us. The practical effect of respondent's demand for a jury trial was that the Government had to transfer the case from a trial before a Magistrate in Hyattsville to a trial before a District Judge and jury in Baltimore, and had to substitute one prosecutor for another. The Government thus suffered not only administrative inconvenience: It also lost the value of the preparation and services of the first prosecutor, and was forced to commit a second prosecutor to prepare the case from scratch. Thus, just as in Blackledge, respondent's election
I conclude that the facts of this case easily support the inference of "a realistic likelihood of vindictiveness."
The Court discusses Bordenkircher v. Hayes, 434 U.S. 357 (1978), ante, at 377-380, and suggests some analogy between that case and the present one, ante, at 380. In my view, such an analogy is quite inapt. Bordenkircher dealt only with the context of plea bargaining and with the narrow situation in which the prosecutor "openly presented the defendant with the unpleasant alternatives of forgoing trial or facing [increased] charges." 434 U. S., at 365. Bordenkircher did not remotely suggest that a pretrial increase in charges, made as a response to a demand for jury trial, would not present a realistic likelihood of vindictiveness when the demand put the prosecution to an added burden such as that imposed in this case. Indeed, Bordenkircher expressly distinguished its facts from those in Blackledge and Pearce: "In those cases the Court was dealing with the State's unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right . . . — a situation `very different from the give-and-take negotiation common in plea bargaining. . . . ' " 434 U. S., at 362, quoting Parker v. North Carolina, 397 U.S. 790, 809 (1970). The facts in this case plainly fit within the pattern of Pearce and Blackledge, not of Bordenkircher. There was no ongoing "give-and-take negotiation" between respondent and the Government, and there
Because it seems clear to me that Blackledge requires it, I would affirm the judgment of the Court of Appeals.
In Chaffin v. Stynchcombe, 412 U.S. 17, the Court held that the prophylactic rule of Pearce does not apply when the second sentence is imposed on retrial by a jury. The Court emphasized that the decision in Pearce "was premised on the apparent need to guard against vindictiveness in the resentencing process." 412 U. S., at 25 (emphasis in original). The Court found that the possibility of vindictiveness was de minimis when resentencing was by jury in a properly controlled retrial. The Court noted that (1) the jury typically will not be aware of the prior sentence, (2) the jury, unlike a judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication, and (3) the jury will not likely be sensitive to the institutional interests that might occasion higher sentences by a judge desirous of discouraging what he regards as meritless appeals. Id., at 26-27.
The decision in Bordenkircher also was influenced by the fact that, had the Court recognized a distinction of constitutional dimension between the dismissal of charges brought in an original indictment and the addition of charges after plea negotiation, the aggressive prosecutor would merely be prompted "to bring the greater charge initially in every case, and only thereafter to bargain." Id., at 368 (BLACKMUN, J., dissenting). The consequences of such a decision often would be prejudicial to defendants, for an accused "would bargain against a greater charge, face the likelihood of increased bail, and run the risk that the court would be less inclined to accept a bargained plea." Ibid. Moreover, in those cases in which a defendant accepted the prosecution's offer, his reputation would be spared the unnecessary damage that would result from the placement of the additional charge on the public record.
"Accordingly, while the prosecutor's charging decision is presumptively lawful, and the prosecutor is not required to sustain any burden of justification for an increase in charges, the defendant is free to tender evidence to the court to support a claim that enhanced charges are a direct and unjustifiable penalty for the exercise of a procedural right. Of course, only in a rare case would a defendant be able to overcome the presumptive validity of the prosecutor's actions through such a demonstration." Brief for United States 28, n. 9.