IN BORDENKIRCHER V. HAYES THE U.S. SUPREME COURT UPHELD A CONVICTION ON A CHARGE WHICH THE PROSECUTOR ADMITTED WAS FILED SOLELY BECAUSE THE DEFENDANT REFUSED TO PLEAD GUILTY TO ANOTHER SET OF CHARGES. IN THE KENTUCKY CASE HAYES WAS INITIALLY INDICTED FOR A $88.30 FORGERY, A CRIME PUNISHABLE BY 2 TO 10 YEARS IN PRISON. THE PROSECUTOR THREATENED HAYES WITH REINDICTMENT AS A HABITUAL CRIMINAL IF HE REFUSED TO PLEA BARGAIN FOR A 5-YEAR SENTENCE. HAYES REFUSED AND SUBSEQUENTLY WAS SENTENCED TO LIFE IMPRISOMENT AS A HABITUAL CRIMINAL. HE APPEALED THE CONVICTION ON THE GROUNDS THAT THE SECOND CHARGE WAS UNCONSTITUTIONALLY VINDICTIVE. THE U.S. SUPREME COURT RECOGNIZED THAT THE PROSECUTOR'S THREAT OF HARSHER PUNISHMENT MIGHT HAVE HAD A 'DISCOURAGING EFFECT' UPON A DEFENDANT'S DECISION TO EXERCISE THE RIGHT TO TRIAL, BUT CALLED THIS 'INEVITABLE' IN A PLEA BARGAINING SYSTEM. IN OTHER CASES THE U.S. SUPREME COURT HAS CONSISTENTLY CONDEMNED CHARGING DECISIONS IN WHICH THE PROSECUTOR INHIBITS A DEFENDANT'S EXERCISE OF LEGAL RIGHTS. OYLER V. BOLES, BLACKLEDGE V. PERRY, AND U.S. V. FALK ARE DISCUSSED. IT IS CONCLUDED THAT THE HAYES DECISION DID NOT PRESERVE THE 'MUTUALITY OF ADVANTAGE' MODEL OF PLEA BARGAINING. JUDICIAL RESTRAINTS ARE URGED TO PREVENT SUBSEQUENT ADDITION OF MORE SERIOUS CHARGES AND IRREGULAR PROCEDURES. IT IS CONCLUDED THAT THE TRIAL JUDGE SHOULD RETAIN OVERSIGHT OVER THE PLEA BARGAINING PROCESS TO PREVENT ABUSES AND THAT PROSECUTORS SHOULD BE REQUIRED TO PROMULGATE AND ADHERE TO REGULATIONS GOVERNING CHANGING DECISIONS. FOOTNOTES CONTAIN REFERENCES, CASE CITATIONS, AND FURTHER DISCUSSION. (GLR)