In the case of Pilon v. Bordenkircher, Warden (1979), the U.S Supreme Court was asked to consider whether a prosecutor's threat to re-indict on a more serious charge if the defendant did not plead guilty violated due process. The petitioner, Pilon, had been indicted for forging and uttering a $100 check but refused to plead guilty despite threats from the prosecutor that he would seek an indictment under Kentucky’s Habitual Criminal Act which carried a mandatory life sentence. After being re-indicted as threatened and sentenced to life imprisonment following conviction at trial, Pilon appealed his case all the way up to Supreme Court arguing that this constituted vindictive prosecution in violation of Due Process Clause of Fourteenth Amendment. The court ruled against him with Justice Powell writing for majority stating that there was no punitive or retaliatory motivation behind prosecutor's actions since it occurred pretrial before any judicial resources were expended on behalf of defendant. The decision emphasized difference between post-trial vindictiveness where prosecutors are penalized for seeking harsher sentences after losing at trial versus pretrial plea negotiations where such tactics are considered part and parcel of adversarial system.

In the dissenting opinion for Pilon v. Bordenkircher, Justice Brennan argued that prosecutorial vindictiveness was present in this case and should not be tolerated by the court. He believed that when a defendant exercises their legal rights, they should not face harsher punishment as a result of doing so. In this particular case, he felt that the prosecutor's decision to re-indict Pilon on more serious charges after he refused to plead guilty was an act of retaliation against him for asserting his right to trial by jury. This action could potentially deter other defendants from exercising their own rights out of fear of similar reprisals. Therefore, Justice Brennan concluded that such practices were unconstitutional and violated due process principles.