Federal prosecutors have broad discretion in deciding whether to bring criminal charges and what charges to pursue. That discretion, however, has constitutional limits.
The government cannot punish a defendant for exercising a constitutional or statutory right.
When prosecutors increase charges or penalties in retaliation for a defendant exercising a protected legal right, the defendant may have a claim of vindictive prosecution in violation of the Due Process Clause.
What Is Vindictive Prosecution?
Vindictive prosecution occurs when the government takes adverse prosecutorial action because a defendant exercised a legal right.
The Supreme Court explained the fundamental principle in United States v. Goodwin, 457 U.S. 368 (1982): prosecutorial vindictiveness involves punishing a person for exercising a protected right.
The issue is therefore not simply whether the prosecutor brought additional charges.
The critical question is why the prosecutor brought them.
A defendant generally must establish either actual prosecutorial vindictiveness or circumstances sufficiently likely to involve retaliation that the law recognizes a presumption of vindictiveness.
Actual Vindictiveness
One way to establish vindictive prosecution is through evidence of actual vindictiveness.
The defense must show that the prosecutor acted with animus toward the defendant because the defendant exercised a protected right and that the prosecutorial action resulted from that retaliatory motive.
This can be difficult to prove because prosecutors rarely announce that additional charges are being filed to punish a defendant for exercising constitutional rights.
The defense, therefore, must carefully examine the prosecution’s chronology, communications from the government, statements made in court, changes in charging decisions, plea negotiations, and the government’s explanation for its actions.
Timing can be important evidence, but suspicious timing by itself will not necessarily establish vindictiveness.
Presumption of Vindictiveness
In certain circumstances, courts may presume prosecutorial vindictiveness without requiring direct proof of the prosecutor’s subjective motive.
The classic situation occurs after a defendant successfully exercises appellate rights.
In Blackledge v. Perry, 417 U.S. 21 (1974), the Supreme Court applied a presumption of vindictiveness after the defendant exercised his right to obtain a new trial and the prosecutor responded by bringing a more serious charge arising from the same conduct.
The concern is straightforward.
A defendant should not have to fear that successfully challenging a conviction will cause the government to retaliate by increasing the potential punishment.
Pretrial Vindictive Prosecution Is Much Harder to Establish
The analysis is substantially different before trial.
In United States v. Goodwin, the Supreme Court explained that prosecutors need flexibility before trial to evaluate evidence, investigate additional conduct, negotiate pleas, and determine the appropriate charges.
Consequently, courts generally will not presume vindictiveness merely because prosecutors increase charges after a defendant exercises a pretrial right.
For example, the filing of a motion to suppress, a demand for trial, a challenge to an indictment, or another ordinary pretrial motion followed by additional charges does not automatically establish vindictive prosecution.
Something more is generally required.
Eleventh Circuit Vindictive Prosecution Law
The Eleventh Circuit addressed the issue extensively in United States v. Barner, 441 F.3d 1310 (11th Cir. 2006).
The court recognized the fundamental rule that a superseding indictment that adds charges and increases potential punishment violates due process if prosecutors obtain the new charges out of vindictiveness.
But Barner also demonstrates how difficult it is to obtain a presumption of vindictiveness before trial.
The defendant had exercised several legal rights, including filing pretrial motions, and the government subsequently obtained a superseding indictment containing additional charges.
The Eleventh Circuit held that those circumstances were not sufficient to create a presumption of vindictiveness.
The court explained that defendants routinely exercise procedural rights before trial. Motions to suppress, challenges to indictments, requests for discovery, demands for jury trials, and other pretrial litigation are normal parts of the adversarial process.
The mere fact that the government later changes or increases charges does not establish retaliation.
However, the Eleventh Circuit did not end the inquiry there. It remanded the case for the district court to determine whether the defendant could establish actual vindictiveness.
A Successful Appeal Presents a Different Situation
The strongest presumption of vindictiveness generally arises when the defendant has already exercised a right and successfully challenged a conviction or sentence.
If the government responds to a successful appeal by bringing more serious charges based on the same conduct, courts scrutinize the decision much more closely.
The Supreme Court’s decision in Blackledge recognizes that allowing prosecutors to retaliate against successful appellants could chill defendants from exercising their appellate rights.
The Constitution does not permit the government to impose that price on a defendant for successfully invoking the judicial process.
Plea Bargaining Is Different
Vindictive prosecution law also distinguishes retaliation from legitimate plea bargaining.
Federal prosecutors may offer concessions in exchange for a guilty plea and may warn that additional supported charges will be pursued if the defendant rejects the offer and proceeds to trial.
The Supreme Court has generally permitted that practice when the prosecutor has probable cause and the defendant remains free to accept or reject the plea offer.
Therefore, the fact that a defendant rejected a plea agreement and later faced additional charges does not, standing alone, establish vindictive prosecution.
The defense must distinguish legitimate plea negotiations from punishment imposed because the defendant exercised a protected right.
Evidence That May Support a Vindictive Prosecution Claim
A vindictive prosecution claim depends heavily on the chronology and facts of the specific prosecution.
Important questions include:
What legal right did the defendant exercise?
The defense should identify precisely the constitutional, statutory, or procedural right that allegedly triggered the government’s retaliation.
What did the government do afterward?
Did prosecutors file additional charges, increase the potential punishment, seek a superseding indictment, revive previously abandoned charges, or take some other adverse prosecutorial action?
How quickly did the government act?
Timing alone is generally insufficient, but unusually close timing can become significant when combined with other evidence.
What explanation has the government provided?
New evidence, newly discovered criminal conduct, correction of an earlier charging mistake, or other legitimate prosecutorial reasons may defeat an inference of vindictiveness.
Are there statements showing a retaliatory motive?
Statements by prosecutors, communications during plea negotiations, court transcripts, emails, or other evidence may help establish whether the government’s decision was motivated by the defendant’s exercise of a protected right.
Remedy for Vindictive Prosecution
Vindictive prosecution is a constitutional violation.
When the defense establishes that additional charges were brought to punish a defendant for exercising protected rights, the court may dismiss the improperly motivated charges.
Because dismissal of criminal charges is a significant remedy, courts carefully examine these claims and generally require substantial evidence before interfering with the government’s charging decisions.
That makes it important to identify and preserve evidence of prosecutorial retaliation as early as possible.
Federal Criminal Defense Attorney Michael J. Petro
The government has substantial power in a federal criminal prosecution, but that power is not unlimited.
A defendant has the right to file motions, challenge evidence, demand a trial, appeal an unlawful conviction or sentence, and exercise other constitutional and statutory rights without being punished by prosecutors for doing so.
When the government increases charges or punishment after a defendant exercises those rights, the sequence of events and the government’s motivation should be carefully examined.
If federal prosecutors increased the charges against you after you exercised an important legal right, call federal criminal defense attorney Michael J. Petro to determine whether the government’s actions may constitute a vindictive prosecution.