Vindictive Prosecution: Limiting the Prosecutor's Decision to Increase the Severity of Existing Charges against a Defendant,

A criminal defendant has a due process right to be free from being punished for having exercised a right given him by the criminal justice system. A prosecutor is held to have deprived a defendant of that due process right if he increases the severity of existing charges with the intent to punish that defendant for or deter other defendants from exercising a legal right. The Supreme Court initially ruled that the appearance of vindictiveness, without justification by the government, would suffice to establish the due process violation, even if no actual intent to punish was proven. Some lower federal courts then developed their own interpretations of this appearance of evil standard, and in some cases required proof of actual vindictiveness. But until recently the courts did not draw a distinction between retaliation by a prosecutor prior to trial and retaliation after a conviction. In 1982 the Supreme Court found that such a distinction existed, and established two standard for deciding vindictive prosecution claims.