In Blackledge v. Perry, the U.S. Supreme Court ruled in 1973 that a prosecutor cannot re-indict a defendant on more serious charges if the defendant has won an appeal of his or her original conviction and is to be retried. The case involved Robert Perry who was initially convicted for assault with a deadly weapon in North Carolina's lower court but appealed to have his case tried by jury at a higher court level. While awaiting this trial, he was indicted again for felony assault which carried heavier penalties than his initial charge. He pleaded guilty and received prison sentence but later challenged it claiming prosecutorial vindictiveness - arguing that he had been punished for exercising his right to appeal through being charged with the greater offense after appealing from district court to superior court. The Supreme Court agreed stating such action violated due process as it posed "a realistic likelihood of 'vindictiveness'" which could deter defendants from pursuing their legal rights out of fear of retaliation via increased charges or sentences.

In the dissenting opinion for Blackledge v. Perry, Justice Rehnquist argued that the majority's decision was based on a misinterpretation of North Carolina law and an overextension of federal power into state criminal proceedings. He contended that there was no evidence to suggest prosecutorial vindictiveness in this case; rather, it seemed more likely that the prosecutor had simply made a mistake or oversight in initially charging Perry with assault with a deadly weapon instead of attempted murder. Furthermore, he believed that even if there were some indication of vindictiveness, it should be up to state courts to decide whether such behavior violated due process rights under their own laws before federal courts intervened. In essence, Justice Rehnquist disagreed with both the factual basis and legal reasoning behind the majority's ruling.