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![handle is hein.journals/jclc72 and id is 140 raw text is: 0091-4169/81/7201-0128
THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 72, No. I
Copyright @ 1981 by Northwestern University School of Law Printedin UA.
SYSTEMIC COERCION:
UNCONSTITUTIONAL CONDITIONS
IN THE CRIMINAL LAW
HOWARD E. ABRAMS*
I. INTRODUCTION
The United States Supreme Court three terms ago decided
Bordenkircher v. Hayes,1 another of the Court's plea bargaining cases.2
The decision purported to concern itself with no more than the course
of conduct engaged in by the prosecutor in [the] case,'3 and the major-
ity would have us believe it merely rejected a due process challenge to
plea bargaining.4 It stands, I fear, for much more. Plea bargaining
cases often present complex questions allowing no easy answers. Hayes,
though, is different. By refusing to recognize that an extreme difference
in degree can result in a difference in kind, the Court, by intellectual
abstinence, declined to extend the doctrine of unconstitutional condi-
tions5 to criminal procedure, its most natural setting.
* Law clerk to Judge Theodore Tannenwald, Jr., United States Tax Court. J.D.,
Harvard University, 1980; B.A., University of California at Irvine, 1976. The author wishes
to thank Professor Charles R. Nesson, Mr. Hayden J. Trubitt, Mr. George T. Sperm, and Dr.
Leonard S. Abrams for their valuable criticisms of an earlier draft.
1 434 U.S. 357 (1978). Discussions of the decision can be found in Nemerson, Coerive
Sentencing, 64 MINN. L. REV. 669 (1980); Pizzi, Prosecutorial Discretion, Plea Bargaining and the
Supreme Court's Opinion in Bordenkirher v. Hayes, 6 HASTINGS CoNsT. L.Q. 269 (1978); Note, The
Resurrection of the Right-Privilege Distinction? A Critical Look at Maher v. Roe and Bordenkireher v.
Hayes, 7 HASTINGS CONsT. L.Q. 165 (1979).
2 The others are: Corbitt v. New Jersey, 439 U.S. 212 (1978); Blackledge v. Allison, 431
U.S. 63 (1977); Blackledge v. Perry, 417 U.S. 21 (1974); Tollett v. Henderson, 411 U.S. 258
(1973); Santobello v. New York, 404 U.S. 257 (1971); North Carolina v. Alford, 400 U.S. 25
(1970); Parker v. North Carolina, 397 U.S. 790 (1970); McMann v. Richardson, 397 U.S. 759
(1970); Brady v. United States, 397 U.S. 742 (1970); United States v. Jackson, 390 U.S. 570
(1968).
3 434 U.S. at 365.
4 Id. at 360, 361, 365. Apparently, they were believed. See The Supreme Court, 1977 Term,
92 HARV. L. REV. 57, 57-326 (1978) (by omission).
5 The doctrine of unconstitutional conditions was first espoused in Hale, Unconstitutional
Conditions and Constitutional Rights, 35 COLUM. L. REv. 321 (1935), and has come to stand for
the proposition that government may not condition the receipt of its benefits upon the non-
assertion of constitutional rights. Note, Academic Freedom and Federal Regulation of Universiy
Hiring, 92 HARv. L. Rav. 879, 891-92 (1979). See generaly Van Alstyne, The Demise of the](ViewImageLocal?handle=hein.journals/jclc72&div=11&collection=journals&method=preview&ext=.png&size=3)