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Can A Prosecutor Threaten Me with Additional Charges To Induce A Plea?

by | Oct 30, 2019 | Criminal Defense

If you have been exposed to the criminal justice system, you’ve likely witnessed the tremendous power of the prosecution. In a criminal case, the prosecutor has a substantial amount of influence, even before a trial begins.

A current example of the prosecution’s power and influence can be seen in the ongoing college admissions scandal. Lori Loughlin and Felicity Huffman, along with fifty other defendants, are charged with bribery, wire fraud, and money laundering. The defendants in these cases are accused of paying hundreds of thousands of dollars to ensure their children were accepted into high profile institutions. Initially, both Loughlin and Huffman claimed innocence and refused to enter into plea negotiations with the prosecution. However, as the investigation continued, Huffman decided to change her plea to guilty and was sentenced to fourteen days in prison and fined thirty thousand dollars. To avoid increased charges and further indictments by the prosecution, other defendants also began changing their pleas to guilty. Because of the threats by the prosecution to increase charges, twenty-nine of the fifty-two defendants have now changed their plea to guilty. This leaves most people asking whether the prosecution can threaten increased charges and new indictments to pressure a criminal defendant to take a plea. 

It is legal for a prosecutor to threaten an indictment or increased charges against a criminal defendant. The Supreme Court of the United States has held that such threats and tactics by the prosecution are constitutionally permissible.1 A prosecutor has incredible discretion on whether to increase the number or severity of charges against a defendant. Like the college admissions scandal, the Supreme Court has even allowed a prosecutor to threaten increased charges or future indictments if the defendant does not enter a guilty plea. The Supreme Court reasoned that such actions by the prosecutor are part of the plea-bargaining process and this does not violate the defendant’s due process rights.

If you have been threatened with additional charges or punishments, there still may be a constitutional remedy. While the Supreme Court has repeatedly held that a mere threat to increase the amount or severity of charges is within the prosecutor’s discretion, the Court stated that such threats cannot be vindictive. According to the Supreme Court, a vindictive threat occurs when a prosecutor threatens to add charges if the defendant exercises his or her constitutional rights. Vindictiveness was found where a prosecutor threatened a defendant for exercising their right to change venue and right to appeal.2 The Court held that these vindictive threats violate a defendant’s due process rights.

While success on vindictive prosecution claims is rare, you still have options if threatened with additional charges or punishments. We at Rittgers & Rittgers would be happy to sit down with you and speak about your case and your options moving forward.


1 See Generally Blackledge v. Perry, 417 U.S. 21 (1974)

2 See United States v. DeMarco, 550 F.2d 1224 (9th Cir. 1977); Blackledge v. Perry, 417 U.S. 21 (1974)

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