Affirmed by an equally divided Court January 6, 1958.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
Petitioner was tried in the Federal District Court for the Northern District of Illinois on December 18, 1953, for robbery of a federally insured savings and loan association,
The Illinois trial court considered and rejected petitioner's plea of autrefois acquit. That ruling and other alleged errors were challenged before the Illinois Supreme Court which affirmed the conviction. 7 Ill.2d 138, 130 N.E.2d 187. We granted certiorari because the petition raised a substantial question concerning the application of the Fourteenth Amendment. 352 U.S. 907, 958. On January 6, 1958, the judgment below was affirmed by an equally divided Court. 355 U.S. 281. On May 26, 1958, the Court granted a petition for rehearing, vacated the judgment entered January 6, 1958, and restored the case to the calendar for reargument. 356 U.S. 969.
The state and federal prosecutions were separately conducted. It is true that the agent of the Federal Bureau of Investigation who had conducted the investigation on behalf of the Federal Government turned over to the Illinois prosecuting officials all the evidence he had gathered against the petitioner. Concededly, some of that evidence had been gathered after acquittal in the federal court. The only other connection between the two trials is to be found in a suggestion that the federal sentencing of the accomplices who testified against petitioner in both
Since the new prosecution was by Illinois, and not by the Federal Government, the claim of unconstitutionality must rest upon the Due Process Clause of the Fourteenth Amendment. Prior cases in this Court relating to successive state and federal prosecutions have been concerned with the Fifth Amendment, and the scope of its proscription of second prosecutions by the Federal Government, not with the Fourteenth Amendment's effect on state action. We are now called upon to draw on the considerations which have guided the Court in applying the limitations of the Fourteenth Amendment on state powers. We have held from the beginning and uniformly that the Due Process Clause of the Fourteenth Amendment does not apply to the States any of the provisions of the first eight amendments as such.
Evidencing the interpretation by both Congress and the States of the Fourteenth Amendment is a comparison of the constitutions of the ratifying States with the Federal
Surely this compels the conclusion that Congress and the States have always believed that the Due Process Clause brought into play a basis of restrictions upon the States other than the undisclosed incorporation of the original eight amendments. In Hurtado v. California, 110 U.S. 516, this Court considered due process in its historical setting, reviewed its development as a concept in Anglo-American law from the time of the Magna Carta until the time of the adoption of the Fourteenth
About the meaning of due process, in broad perspective unrelated to the first eight amendments, he suggested that it prohibited to the States only those practices "repugnant to the conscience of mankind." 302 U. S., at 323. In applying these phrases in Palko, the Court ruled that, while at some point the cruelty of harassment by multiple prosecutions by a State would offend due process, the specific limitation imposed on the Federal Government by the Double Jeopardy Clause of the Fifth Amendment did not bind the States.
Decisions of this Court concerning the application of the Due Process Clause reveal the necessary process of
Constitutional challenge to successive state and federal prosecutions based upon the same transaction or conduct is not a new question before the Court though it has now been presented with conspicuous ability.
In Fox v. Ohio argument was made to the Supreme Court that an Ohio conviction for uttering counterfeit money was invalid. This assertion of invalidity was based in large part upon the argument that since Congress had imposed federal sanctions for the counterfeiting of money, a failure to find that the Supremacy Clause precluded the States from punishing related conduct would expose an individual to double punishment. Mr. Justice Daniel, writing for the Court (with Mr. Justice McLean dissenting), recognized as true that there was a possibility of double punishment, but denied that from this flowed a finding of pre-emption, concluding instead that both the Federal and State Governments retained the power to impose criminal sanctions, the United States because of its interest in protecting the purity of its currency, the States because of their interest in protecting their citizens against fraud.
In some eight state cases decided prior to Fox the courts of seven States had discussed the validity of successive state and federal prosecutions. In three, Missouri,
In a dozen cases decided by this Court between Moore v. Illinois and United States v. Lanza this Court had occasion to reaffirm the principle first enunciated in Fox v. Ohio.
The lower federal courts have of course been in accord with this Court.
The experience of state courts in dealing with successive prosecutions by different governments is obviously also relevant in considering whether or not the Illinois prosecution of Bartkus violated due process of law. Of the twenty-eight States which have considered the validity of successive state and federal prosecutions as against a challenge of violation of either a state constitutional double-jeopardy provision or a common-law evidentiary rule of autrefois acquit and autrefois convict, twenty-seven have refused to rule that the second prosecution
Not all of the state cases manifest careful reasoning, for in some of them the language concerning double jeopardy is but offhand dictum. But in an array of state cases there may be found full consideration of the arguments supporting and denying a bar to a second prosecution. These courts interpreted their rules as not proscribing a second prosecution where the first was by a different government and for violation of a different statute.
With this body of precedent as irrefutable evidence that state and federal courts have for years refused to bar a second trial even though there had been a prior trial by another government for a similar offense, it would be disregard of a long, unbroken, unquestioned course of impressive adjudication for the Court now to rule that due process compels such a bar. A practical justification for rejecting such a reading of due process also commends
Some recent suggestions that the Constitution was in reality a deft device for establishing a centralized government are not only without factual justification but fly in the face of history. It has more accurately been shown that the men who wrote the Constitution as well as the citizens of the member States of the Confederation were fearful of the power of centralized government and sought to limit its power. Mr. Justice Brandeis has written that separation of powers was adopted in the Constitution "not to promote efficiency but to preclude the exercise of arbitrary power."
The entire history of litigation and contention over the question of the imposition of a bar to a second prosecution by a government other than the one first prosecuting is a manifestation of the evolutionary unfolding of law. Today a number of States have statutes which bar a second prosecution if the defendant has been once tried by another government for a similar offense.
Precedent, experience, and reason alike support the conclusion that Alfonse Bartkus has not been deprived of due process of law by the State of Illinois.
[For dissenting opinion of MR. JUSTICE BLACK, see post, p. 150.]
[For dissenting opinion of MR. JUSTICE BRENNAN, see post, p. 164.]
Petitioner, Bartkus, was indicted in a United States District Court for bank robbery. He was tried by a jury and acquitted. So far as appears the trial was conducted fairly by an able and conscientious judge. Later, Bartkus was indicted in an Illinois state court for the same bank robbery. This time he was convicted and sentenced to life imprisonment. His acquittal in the federal court would have barred a second trial in any court of the United States because of the provision in the Fifth Amendment that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The Court today rejects Bartkus' contention that his state conviction after a federal acquittal violates the Fourteenth Amendment to our Constitution. I cannot agree.
The Court's holding further limits our already weakened constitutional guarantees against double prosecutions. United States v. Lanza, 260 U.S. 377, decided in 1922, allowed federal conviction and punishment of a man who had been previously convicted and punished for the identical acts by one of our States. Today, for the first time in its history, this Court upholds the state conviction of a defendant who had been acquitted of the same offense in the federal courts. I would hold that a federal trial following either state acquittal or conviction is barred by the Double Jeopardy Clause of the Fifth Amendment. Abbate v. United States, post, p. 201 (dissenting opinion). And, quite apart from whether that clause is as fully binding on the States as it is on the Federal Government, see Adamson v. California, 332 U.S. 46, 68 (dissenting opinion), I would hold that Bartkus' conviction cannot stand. For I think double prosecutions for the same offense are so contrary to the spirit of our free country that they violate even the prevailing view of the
The Fourteenth Amendment, this Court said in Palko, does not make all of the specific guarantees of the Bill of Rights applicable to the States. But, the Court noted, some of "the privileges and immunities" of the Bill of Rights, "have been taken over . . . and brought within the Fourteenth Amendment by a process of absorption." 302 U. S., at 326. The Court indicated that incorporated in due process were those "principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." 302 U. S., at 325.
Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into
The Court apparently takes the position that a second trial for the same act is somehow less offensive if one of the trials is conducted by the Federal Government and the other by a State. Looked at from the standpoint of the individual who is being prosecuted, this notion is too subtle for me to grasp. If double punishment is what is feared, it hurts no less for two "Sovereigns" to inflict it than for one. If danger to the innocent is emphasized, that danger is surely no less when the power of State and Federal Governments is brought to bear on one man in two trials, than when one of these "Sovereigns" proceeds alone. In each case, inescapably, a man is forced to face danger twice for the same conduct.
The Court, without denying the almost universal abhorrence of such double prosecutions, nevertheless justifies the practice here in the name of "federalism." This, it seems to me, is a misuse and desecration of the concept. Our Federal Union was conceived and created "to establish Justice" and to "secure the Blessings of Liberty," not to destroy any of the bulwarks on which both freedom and justice depend. We should, therefore, be suspicious of any supposed "requirements" of "federalism" which result in obliterating ancient safeguards. I have been shown nothing in the history of our Union, in the writings of its Founders, or elsewhere, to indicate that individual rights deemed essential by both State and Nation were to
Implicit in the Court's reliance on "federalism" is the premise that failure to allow double prosecutions would seriously impair law enforcement in both State and Nation. For one jurisdiction might provide minor penalties for acts severely punished by the other and by accepting pleas of guilty shield wrongdoers from justice. I believe this argument fails on several grounds. In the first place it relies on the unwarranted assumption that State and Nation will seek to subvert each other's laws. It has elsewhere been persuasively argued that most civilized nations do not and have not needed the power to try people a second time to protect themselves even when dealing with foreign lands.
The Court's argument also ignores the fact that our Constitution allocates power between local and federal governments in such a way that the basic rights of each can be protected without double trials. The Federal Government is given power to act in limited areas only, but in matters properly within its scope it is supreme. It can retain exclusive control of such matters, or grant the States concurrent power on its own terms. If the States were to subvert federal laws in these areas by imposing inadequate penalties, Congress would have full power to protect the national interest, either by defining the crime to be punished and establishing minimum penalties applicable in both state and federal courts, or by excluding the States altogether. Conversely, in purely local matters the power of the States is supreme and exclusive. State courts can and should, therefore, protect all essentially local interests in one trial without federal interference. Cf. Rutkin v. United States, 343 U.S. 130, 139 (dissenting opinion). In areas, however, where the Constitution has vested power in the Federal Government the States necessarily act only to the extent Congress permits, and it is no infringement on their basic rights if Congress chooses to fix penalties smaller than some of them might wish. In fact, this will rarely occur, for Congress is not likely to use indirect means to limit state power when it could accomplish the same result directly by pre-empting the field.
To bolster its argument that successive state and federal prosecutions do not violate basic principles of justice, the Court cites many cases. It begins with eight early state decisions which, it says, "clarified the issue by stating opposing arguments." Four of these cases held that prosecution by one government must bar subsequent prosecutions elsewhere.
The Court relies mainly, however, on a later line of decisions starting with Fox v. Ohio, 5 How. 410. Most of these, like Fox itself, involved only the question of whether both State and Federal Governments could make the same conduct a crime. Although some, in dicta, admitted the possibility that double prosecutions might result from such concurrent power, others did not discuss the question.
Despite its exhaustive research, the Court has cited only three cases before Lanza where a new trial after an acquittal was upheld. In one of these, United States v. Barnhart, 22 F. 285, the state court in which the defendant had been acquitted did not have jurisdiction of the action. The Federal Circuit Court relied on this lack of jurisdiction in allowing a retrial, but made
One may, I think, infer from the fewness of the cases that retrials after acquittal have been considered particularly obnoxious, worse even, in the eyes of many, than retrials after conviction.
Since Lanza people have apparently become more accustomed to double trials, once deemed so shocking, just
There are some countries that allow the dangerous practice of trying people twice. I am inserting below a recent news item about a man who was tried, convicted, sentenced to prison and then was tried again, convicted and sentenced to death.
I would reverse.
MR. JUSTICE BRENNAN, whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS join, dissenting.
Bartkus was tried and acquitted in a Federal District Court of robbing a federally insured savings and loan association in Cicero, Illinois. He was indicted for the same robbery by the State of Illinois less than three weeks later, and subsequently convicted and sentenced to life imprisonment. The single issue in dispute at both trials was whether Bartkus was the third participant in the robbery along with two self-confessed perpetrators of the crime.
The Government's case against Bartkus on the federal trial rested primarily upon the testimony of two of the robbers, Joseph Cosentino and James Brindis, who confessed
The federal authorities were highly displeased with the jury's resolution of the conflicting testimony, and the trial judge sharply upbraided the jury for its verdict. See some of his remarks printed in United States v. Vasen, 222 F.2d 3, 9-10 (dissenting opinion). The federal authorities obviously decided immediately after the trial to make a second try at convicting Bartkus, and since the federal courthouse was barred to them by the Fifth Amendment, they turned to a state prosecution for that purpose. It is clear that federal officers solicited the state indictment, arranged to assure the attendance of key witnesses, unearthed additional evidence to discredit Bartkus and one of his alibi witnesses, and in general prepared and guided the state prosecution. Thus the State's Attorney stated at the state trial: "I am particularly glad to see a case where the federal authorities came to see the state's attorney." And Illinois conceded with commendable candor on the oral argument in this Court "that the federal officers did instigate and guide this state prosecution" and "actually prepared this case." Indeed, the State argued the case on the basis that the record showed as a matter of "fair inference" that the case was one in which "federal officers bring to the attention of the state prosecuting authority the commission of an act and furnish and provide him with evidence of defendant's guilt."
I think that the record before us shows that the extent of participation of the federal authorities here constituted this state prosecution actually a second federal
In January, also, an FBI agent who had been active in the federal prosecution purposefully set about strengthening the proofs which had not sufficed to convict Bartkus on the federal trial. And he frankly admitted that he "was securing it [information] for the federal government," although what he gathered had "gone to the state authorities." These January efforts of the agent were singularly successful and may well have tipped the scales in favor of conviction. He uncovered a new witness against Bartkus, one Grant Pursel, who had been enlarged on bail pending his sentencing on his plea of guilty to an indictment for violation of the Mann Act. Pursel testified that "about two weeks after the federal trial, in the first part of January," the FBI agent sought him out to discuss an alleged conversation between Pursel and Bartkus
Also within a month after the federal acquittal the FBI agent sought out the operator of the barber shop who had placed Bartkus in his shop at the time of the robbery. The barber testified at both federal and state trials that Bartkus entered his shop before 4 o'clock, about which time the robbery was committed. The agent testified as a rebuttal witness for the State that the barber had told him in January that it might have been after 4:30 o'clock when Bartkus entered the shop. And the significance of the federal participation in this prosecution is further evidenced by the Assistant State's Attorney's motion at the beginning of the trial, which was granted over defense objection, to permit the FBI agent to remain in the courtroom throughout the trial although other witnesses were excluded.
The Court, although not finding such to be the case here, apparently acknowledges that under certain circumstances it would be necessary to set aside a state conviction brought about by federal authorities to avoid the prohibition of the Fifth Amendment against a second federal prosecution. Our task is to determine how much
To set aside this state conviction because infected with constitutional violations by federal officers implies no condemnation of the state processes as such. The conviction is set aside not because of any infirmities resulting from fault of the State but because it is the product of unconstitutional federal action. I cannot grasp the merit of an argument that protection against federal oppression in the circumstances shown by this record would do violence to the principles of federalism. Of course, cooperation
"We have had a number of cases where the state's attorney's office have been cooperating very with the federal authorities, particularly in the narcotics cases, because in that connection the federal government should have the first authority in handling them because narcotics is a nation-wide criminal organization, and so when I see people going through this town and criticizing the County of Cook and the City of Chicago, because of the police, the state's attorney and the judges cooperating with the federal authorities, and giving that as proof of the fact that since we don't take the lead we must be negligent in our duties, I am particularly glad to see a case where the federal authorities came to the state's attorney.
"We are cooperating with the federal authorities and they are cooperating with us, and these statements in this city to the effect that the fact that the federal authorities are in the county is a sign of breakdown in law enforcement in Cook County is utter nonsense.
"The federal authorities have duties and we have duties. We are doing our duty and this is an illustration of it, and we are glad to continue to cooperate with the federal authorities. Give them the first play where it is their duty, as in narcotics, and we take over where our duty calls for us to carry the burden. . . ."
"Mention should also be made of the National Bank Robbery statute. This statute punishes robberies of national banks, banks which are members of the Federal Reserve System, and banks the funds of which are insured by the Federal Deposit Insurance Corporation. And here again there has been no usurpation by the federal government. The states still may prosecute any robbery of any bank within their jurisdiction, and they frequently do. There have been several cases in the last few years where men have been convicted both under the state and federal law for robbing the same bank. In fact, there have been cases where men have been tried under the law of one jurisdiction, acquitted, and on the same facts tried under the law of the other sovereignty and convicted. Bank robbers know today that `flight,' their most valuable weapon, has, under the operation of the National Bank Robbery statute, proved quite impotent. The bank robbery rate has been cut in half, and there has been a fine relation between state and federal agencies in the apprehension and trial of bank robbers." Id., at 114.
STATES DENYING THE BAR.
Arizona, Henderson v. State, 30 Ariz. 113, 244 P. 1020 (despite a limited statutory bar, holding successive federal and state prosecutions permitted where one is for possession and the other for transportation).
Arkansas. State v. Duncan, 221 Ark. 681, 255 S.W.2d 430.
California. People v. McDonnell, 80 Cal. 285, 22 P. 190; People v. Candelaria, 139 Cal.App.2d 432, 294 P.2d 120; People v. Candelaria, 153 Cal.App.2d 879, 315 P.2d 386 (these two Candelaria cases indicate that the California statutory bar, a statute of the kind discussed below, prevents a state robbery prosecution after a federal robbery prosecution, but not a state burglary prosecution in the same circumstances).
Georgia. Scheinfain v. Aldredge, 191 Ga. 479, 12 S.E.2d 868; Bryson v. State, 27 Ga.App. 230, 108 S. E. 63.
Illinois. Hoke v. People, 122 Ill. 511, 13 N. E. 823.
Indiana. Heier v. State, 191 Ind. 410, 133 N. E. 200; Dashing v. State, 78 Ind. 357.
Iowa. State v. Moore, 143 Iowa 240, 121 N. W. 1052.
Kentucky. Hall v. Commonwealth, 197 Ky. 179, 246 S. W. 441.
Louisiana. State v. Breaux, 161 La. 368, 108 So. 773, aff'd per cur., 273 U.S. 645.
Maine. See State v. Gauthier, 121 Me. 522, 529-531, 118 A. 380, 383-385.
Massachusetts. Commonwealth v. Nickerson, 236 Mass. 281, 128 N. E. 273.
Minnesota. State v. Holm, 139 Minn. 267, 166 N. W. 181.
Missouri. In re January, 295 Mo. 653, 246 S. W. 241.
New Hampshire. State v. Whittemore, 50 N.H. 245.
New Jersey. State v. Cioffe, 130 N. J. L. 160, 32 A.2d 79.
New York. People v. Welch, 141 N.Y. 266, 36 N. E. 328.
North Carolina. See State v. Brown, 2 N. C. *100, 101.
Oregon. State v. Frach, 162 Or. 602, 94 P.2d 143.
Pennsylvania. See Commonwealth ex rel. O'Brien v. Burke, 171 Pa.Super. 273, 90 A.2d 246.
South Carolina. State v. Tutt, 2 Bailey 44.
Tennessee. State v. Rhodes, 146 Tenn. 398, 242 S. W. 642; State v. Rankin, 4 Coldw. 145.
Vermont. State v. O'Brien, 106 Vt. 97, 170 A. 98.
Virginia. Jett v. Commonwealth, 18 Gratt. (59 Va.) 933.
Washington. State v. Kenney, 83 Wn. 441, 145 P. 450.
West Virginia. State v. Holesapple, 92 W.Va. 645, 115 S. E. 794. See Moundsville v. Fountain, 27 W.Va. 182, 197-198.
Wyoming. See In re Murphy, 5 Wyo. 297, 304-309, 40 P. 398, 399-401.
STATE RAISING THE BAR.
Florida. Burrows v. Moran, 81 Fla. 662, 89 So. 111 (this case may be limited to the interpretation given by the Florida court to the Eighteenth Amendment. See Strobhar v. State, 55 Fla. 167, 180-181, 47 So. 4, 9).
In the twelfth century avoidance of double punishment was a major element in the celebrated controversy between St. Thomas Becket and King Henry II. Henry wanted clerics who had been convicted of crimes in church courts turned over to lay tribunals for their punishment. Whether Becket was in fact correct in his assertions that Henry's proposals would result in double punishment for the clerics has been much debated by historians. In all events, Henry's plan was abandoned after Becket's murder. See Brooke, op. cit., supra, note 4, at 190-214; 2 Maitland, op. cit., supra, note 4; 1 Pollock and Maitland, op. cit., supra, note 4, at 447-456; Poole, op. cit., supra, note 4, at 203-218.
In 1487 an exception was made in the rule by a statute dealing with the "Authority of the Court of Star Chamber," 3 Hen. 7, c. 1. At the time criminal proceedings could be brought in two ways, by government indictment and by the parties who suffered injury from the crime. 3 Hen. 7, c. 1, provided that in "Death or Murder" cases a defendant acquitted or attainted under government prosecution could be tried again on charges brought by "the Wife, or next Heir to him so slain." The Act was apparently never broadened and was given an extremely narrow construction. See Hawkins, op. cit., supra, note 5, at 373-374, 377-379. See also Staundeforde, op. cit., supra, note 5, at 106-108. It soon fell into disuse, and the legal profession was greatly shocked when, in 1818, the statute was relied on to justify the retrial of a defendant who had previously been acquitted. After many maneuvers, which included upholding the defendant's right to trial by battle, a second acquittal was obtained, and the loophole in the "universal rule" against double trials was formally plugged by Parliament. See Radin, Anglo-American Legal History, 226-227, n. 24; Kirk, "Jeopardy" During the Period of the Year Books, 32 U. Pa. L. Rev. 602, 608-609.
The maxim "non bis in idem" is found throughout the civil law. See Batchelder, Former Jeopardy, 17 Am. L. Rev. 735. See also Berner, Non bis in idem, 3 Archiv fur Preussisches Strafrecht (1855), 472; Kussner, Non bis in idem, id., at 198; Donnedieu de Vabres, Droit Criminel (3d ed. 1947), 886-887; It. Codice di Procedura Penale, Art. 90, 579 (Ludus ed. 1955). But cf. Radin, Anglo-American Legal History, 228.
"A 19-year-old `stilyag' (zoot-suiter) was re-tried and sentenced to death following public protests that the original ten to twenty-five-year term imposed for killing a militiaman during a robbery was too lenient, the newspaper Komsomolskaya Pravda said today.
"The condemned youth was Victor Shanshkin, leader of a gang of four youths who tried to break into a Moscow store last May, according to the newspaper of the Young Communist Organization.
"He pumped seven bullets into the militiaman, who tried to prevent the robbery.
"The four escaped, but were later arrested and sentenced to prison terms ranging from ten to twenty-five years. The sentences aroused widespread public protests.
"At the second trial, held recently, Shanshkin was sentenced to die. The other three, all under 20 years of age, were ordered to serve prison terms ranging from ten to twenty years."