Critical Evaluation Of Bordenkircher Vs. Hayes

Criminal Penalties Spring 2016 Final Critical Evaluation of Bordenkircher v. Hayes

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In Bordenkircher v. Hayes, a case that challenged the ability of prosecutors to threaten a defendant with additional and more severe charges if he refused to plead guilty, the Supreme Court held that there is no violation of the Due Process Clause when the defendant is re-indicted on more serious charges for which he is plainly subject to prosecution. The defendant in Bordenkircher, Mr. Hayes, had been charged with uttering a forged instrument in the amount of $88.30. If Mr. Hayes agreed to plead guilty the prosecutor agreed to recommend a five-year prison sentence and to forego charging Mr. Hayes under the Kentucky Habitual Criminal Act (“HCA”).

Legally, there is no valid answer to that question, a fact, which is demonstrated by the following quote from Bordenkircher. “[W]hatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system.” In other words, the legal system depends on plea bargaining and plea bargaining depends on the ability of prosecutors to threaten defendants. Consequently, the Court’s reasoning is not based on a legal foundation, but a practical one. Regardless of how essential plea bargaining may be to the functioning of the judicial system, “implementation of a strategy calculated solely to deter the exercise of constitutional rights is not a constitutionally permissible exercise of discretion” There are many practices which would make the criminal justice system function more efficiently. For example, requiring less than proof beyond a reasonable doubt, denying a defendant an attorney, and allowing a judge to determine guilt or innocence. However, just because something may allow the judicial system to function more efficiently does not make it

Hayes’ sentence. In recent decades, The Supreme Court has been extremely reluctant to analyze a prison sentence for proportionality under the Eighth Amendment. There are several explanations for the lack of proportionality review, from Scalia’s originalist (yet erroneous) view that the Eighth Amendment prohibits only certain methods of punishment, to the Court’s reluctance to clearly define what proportionality requires. The Court has not always been reluctant to engage in proportionality analysis. For example, in Robinson v. California the Court said, “imprisonment for ninety days [for being a drug addict] is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Further in Weems v. United States the Court ruled that the Eighth Amendment “proscribes punishment grossly disproportionate to the severity of the