Prohibiting Prosecutorial Vindictiveness while Protecting Prosecutorial Discretion: Toward a Principled Resolution of a Due Process Dilemma

Abstract

This Article traces the rise and fall of the doctrine prohibiting prosecutorial vindictiveness from its inception in 1974 to the present. As a necessary introduction to a discussion of the most recent expressions of the doctrine, Section II presents a detailed analysis of North Carolina v. Pearce, Colten v. Kentucky, Chaffin v. Stynchcomb, Blackledge v. Perry, and Bordenkircher v. Hayes, the major cases that have discussed the development of both the judicial vindictiveness doctrine and the prosecutorial vindictiveness doctrine. This section then focuses on the Supreme Court's application of the vindictiveness analysis to prosecutors in United States v. Goodwin. Section III of the Article closely examines the reasoning in Goodwin and observes that the Goodwin opinion apparently misconstrues both North Carolina v. Pearce and Blackledge v. Perry and contradicts the reasoning in Bordenkircher v. Hayes. Section IV of the Article examines the impact of the Goodwin opinion on the vindictiveness doctrine and suggests that Goodwin may actually require procedures that are more costly and, at the same time, less effective in accomplishing the stated purpose of the doctrine than those that existed prior to the Goodwin opinion. The Article observes that, in spite of expressions of concern for maintaining the prohibition against vindictiveness, the current state of the doctrine severely restricts due process limitations on pre-trial use of prosecutorial power to punish defendants who exercise procedural rights. The most recent expressions of the doctrine establish an analytical framework that may eviscerate the branch of the doctrine that addresses the "chilling effect" on the exercise of rights caused by the fear of retaliation by prosecutors. Section V of the Article illustrates the development of the prosecutorial vindictiveness doctrine in the lower courts following Goodwin and pinpoints the aspects of the doctrine that are likely to remain in controversy.