In Bordenkircher v. Hayes, the U.S. Supreme Court ruled that it was not a violation of due process for a prosecutor to carry out a threat made during plea negotiations to re-indict the accused on more serious charges if he did not plead guilty to the offense with which he was originally charged. The case involved Paul Lewis Hayes who had been indicted on a charge of uttering a forged instrument worth $88.50 and faced two years in prison under Kentucky law but could be sentenced up to life imprisonment as an habitual criminal because of his prior convictions if convicted again after trial. During plea negotiations, prosecutors threatened him with this possibility unless he pled guilty; when Hayes refused, they carried through their threat and secured conviction at trial leading him being sentenced for life imprisonment under Kentucky's recidivist statute. The court held that while subjecting defendants to fear and anxiety is part of punishment inherent in any criminal proceedings, there is no element of retaliation or vindictiveness against defendant by prosecutor so long as accused is free knowingly and voluntarily either accept or reject prosecution’s offer before trial begins.

In the dissenting opinion for Bordenkircher v. Hayes, Justice Byron White argued that prosecutorial discretion should not be used to punish a defendant for exercising his constitutional right to trial. He contended that threatening a defendant with increased charges if he does not plead guilty is coercive and undermines the fairness of the criminal justice system. The majority's decision, according to him, allows prosecutors too much power in determining sentences and could lead to arbitrary or discriminatory practices. Furthermore, it may discourage defendants from asserting their rights due to fear of retaliation by prosecutors. Thus, he believed that such tactics violated principles of due process.