The judicial response to the problems posed by the conduct of a prosecutor who brings increased charges against a criminal defendant for exercising his legal rights has not been adequate.Lower federal courts have adopted divergent standards, focusing on whether there exists an appearance of prosecutorial vindictiveness, a realistic likelihood of prosecutorial vindictiveness, or actual prosecutorial vindictiveness. By couching their analyses in terms of the prosecutor's motivations, these courts have ignored the overriding principle of substantive due process, which holds that fundamental constitutional rights should be afforded greater due process protection than nonfundamental rights. This Recent Development submits that courts must recognize that the unconstitutional conditions doctrine applies to cases alleging prosecutorial misconduct. Thus, when a prosecutor brings in-creased charges against a defendant for asserting a fundamental right, such action violates due process unless the state can demonstrate a compelling interest. On the other hand, when a prosecutor brings increased charges against a defendant for asserting a nonfundamental right, the action does not violate due process if the state can demonstrate a rational basis for the action. Even if there is no due process violation, however, it is incumbent upon the courts to invoke their supervisory powers to control prosecutorial abuses when nonfundamental rights are implicated.Increased judicial supervision of prosecutorial misconduct will benefit both individual defendants and the criminal justice system.
John J. Cross, III,
Prosecutorial Vindictiveness: An Examination of Divergent Lower Court Standards and a Proposed Framework For Analysis,
34 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol34/iss2/6