In Bordenkircher v. Hayes, the United States Supreme Court upheld a conviction on a charge the prosecutor admittedly filed solely because the defendant refused to plead guilty to another set of charges. Hayes is a sudden departure from a line of cases in which the Court refused to allow prosecutorial charging decisions to be made to discourage a criminal defendant from exercising constitutional or procedural rights. The decision effectively removes plea bargaining from its constitutional premise: the "mutuality of advantage" between the prosecutor and the defendant. Rather than approving the broad exercise of prosecutorial discretion in plea negotiations, the Hayes Court should have developed an administrable set of rules to prohibit using the prosecutor's charging power for tactical advantage.
Stephen F. Ross, Bordenkircher v. Hayes: Ignoring Prosecutorial Abuses in Plea Bargaining, 66 Cal. L. Rev. 875 (1978).