Bartkus v. People of the State of Illinois

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 General Savings and Loan Association of Cicero, Illinois, in violation of 18 U.S.C. s 2113, . . . The case was tried to a jury and resulted in an acquittal. On January 8, 1954, an Illinois grand jury indicted Bartkus. The facts recited in the Illinois indictment were substantially identical to those contained in the prior federal indictment. The Illinois indictment charged that these facts constituted a violation of Illinois Revised Statutes, . . . a robbery statute. Bartkus was tried and convicted in the Criminal Court of Cook County and was sentenced to life imprisonment under the Illinois Habitual Criminal Statute. . . .

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. . . . We granted certiorari because the petition raised a substantial question concerning the application of the Fourteenth Amendment. . . . On January 6, 1958, the judgment below was affirmed by an equally divided Court. . . . 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. . . .

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 trials was purposely continued by the federal court until after they testified in the state trial. The record establishes that the prosecution was undertaken by state prosecuting officials within their discretionary responsibility and on the basis of evidence that conduct contrary to the penal code of Illinois had occurred within their jurisdiction. It establishes also that federal officials acted in cooperation with state authorities, as is the conventional practice between the two sets of prosecutors throughout the country. It does not support the claim that the State of Illinois in bringing its prosecution was merely a tool of the federal authorities, who thereby avoided the prohibition of the Fifth Amendment against a retrial of a federal prosecution after an acquittal. It does not sustain a conclusion that the state prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another federal prosecution.

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. The relevant historical materials have been canvassed by this Court and by legal scholars. These materials demonstrate conclusively that Congress and the members of the legislatures of the ratifying States did not contemplate that the Fourteenth Amendment was a short-hand incorporation of the first eight amendments making them applicable as explicit restrictions upon the States.

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 Constitution. Having regard only to the grand jury guarantee of the Fifth Amendment, the criminal jury guarantee of the Sixth Amendment, and the civil jury guarantee of the Seventh Amendment, it is apparent that if the first eight amendments were being applied verbatim to the States, ten of the thirty ratifying States would have impliedly been imposing upon themselves constitutional requirements on vital issues of state policies contrary to those present in their own constitutions. Or, to approach the matter in a different way, they would be covertly altering provisions of their own constitutions in disregard of the amendment procedures required by those constitutions. Five other States would have been undertaking procedures not in conflict with but not required by their constitutions. Thus only one-half, or fifteen, of the ratifying States had constitutions in explicit accord with these provisions of the Fifth, Sixth, and Seventh Amendments. Of these fifteen, four made alterations in their constitutions by 1875 which brought them into important conflict with one or more of these provisions of the Federal Constitution. One of the States whose constitution had not included any provision on one of the three procedures under investigation adopted a provision in 1890 which was inconsistent with the Federal Constitution. And so by 1890 only eleven of the thirty ratifying States were in explicit accord with these provisions of the first eight amendments to the Federal Constitution. Four were silent as to one or more of the provisions and fifteen were in open conflict with these same provisions.

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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. The Fifth Amendment's proscription of double jeopardy has been invoked and rejected in over twenty cases of real or hypothetical successive state and federal prosecution cases before this Court. While United States v. Lanza, . . . was the first case in which we squarely held valid a federal prosecution arising out of the same facts which had been the basis of a state conviction, the validity of such a prosecution by the Federal Government has not been questioned by this Court since the opinion in Fox v. State of Ohio, . . . more than one hundred years ago.

In Fox v. State of 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. . .

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The significance of this historical background of decisions prior to Fox is that it was, taking a position most favorable to advocates of the bars of autrefois acquit and autrefois convict in cases like that before this Court, totally inconclusive. Conflicting opinions concerning the applicability of the plea in bar may manifest conflict in conscience. They certainly do not manifest agreement that to permit successive state and federal prosecutions for different crimes arising from the same acts would be repugnant to those standards of outlawry which offend the conception of due process outlined in Palko. (It is worth noting that Palko sustained a first degree murder conviction returned in a second trial after an appeal by the State from an acquittal of first degree murder.) The early state decisions had clarified the issue by stating the opposing arguments. The process of this Court's response to the Fifth Amendment challenge was begun in Fox v. State of Ohio, continued in United States v. Marigold, . . . and was completed in Moore v. People of State of Illinois, . . . Mr. Justice Grier, writing for the Court in Moore v. People of State of Illinois, gave definitive statement to the rule which had been evolving:

‘An offence, in its legal signification, means the transgression of a law. . . Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both.’ . . . ‘That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other.’

In a dozen cases decided by this Court between Moore v. People of State of Illinois and United States v. Lanza this Court had occasion to reaffirm the principle first enunciated in Fox v. State of Ohio. Since Lanza the Court has five times repeated the rule that successive state and federal prosecutions are not in violation of the Fifth Amendment.Indeed Mr. Justice Holmes once wrote of this rule that it ‘is too plain to need more than statement.’ . . .

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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. A study of the cases under the New York statute, which is typical of these laws, demonstrates that the task of determining when the federal and state statutes are so much alike that a prosecution under the former bars a prosecution under the latter is a difficult one. The proper solution of that problem frequently depends upon a judgment of the gravamen of the state statute. It depends also upon an understanding of the scope of the bar that has been historically granted in the State to prevent successive state prosecutions. Both these problems are ones with which the States are obviously more competent to deal than is this Court. Furthermore, the rules resulting will intimately affect the efforts of a State to develop a rational and just body of criminal law in the protection of its citizens. We ought not to utilize the Fourteenth Amendment to interfere with this development. Finally, experience such as that of New York may give aid to Congress in its consideration of adoption of similar provisions in individual federal criminal statutes or in the federal criminal code.

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.

Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.

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, . . . 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, the 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. . . . And, quite apart from whether that clause is as fully binding on the States as it is on the Federal Government, . . . 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 Fourteenth Amendment, expressed in Palko v. Connecticut, . . .

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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 Greek and Roman times. Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers. By the thirteenth century it seems to have been firmly established in England, where it came to be considered as a ‘universal maxim of the common law.' It is not surprising, therefore, that the principle was brought to this country by the earliest settlers as part of their heritage of freedom, and that it has been recognized here as fundamental again and again. Today it is found, in varying forms, not only in the Federal Constitution, but in the jurisprudence or constitutions of every State, as well as most foreign nations. It has, in fact, been described as a part of all advanced systems of law and as one of those universal principles ‘of reason, justice, and conscience, of which Cicero said: ‘Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations it is the same. “While some writers have explained the opposition to double prosecutions by emphasizing the injustice inherent in two punishments for the same Act, and others have stressed the dangers to the innocent from allowing the full power of the state to be brought against them in two trials, the basic and recurring theme has always simply been that it is wrong for a man to ‘be brought into Danger for the same Offence more than once. 'Few principles have been more deeply ‘rooted in the traditions and conscience of our people.’

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, then 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 be lost through the combined operations of the two governments. Nor has the Court given any sound reason for thinking that the successful operation of our dual system of government depends in the slightest on the power to try people twice for the same act.

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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. I doubt, in fact, if many practices which have been found to violate due process can boast of so little actual support. Yet it is on this meager basis that the Court must ultimately rest its finding that Bartkus' retrial does not violate fundamental principles ‘rooted in the traditions and conscience of our peoples.’ Nor are these scattered and dubious cases unchallenged, for, balanced against them, we have a firm holding by this Court sustaining an extremely narrow construction of a federal statute in order to make a state acquittal conclusive in the federal courts and thereby avoid the evil approved today. . . . That case, as well as the ‘sacred duty . . . to maintain unimpaired those securities for the personal rights of the individual which have received for ages the sanction of the jurist and the statesman,’ . . . should make us doubly hesitant to encourage so blatant a violation of constitutional policies against double trials by giving an ‘illiberal construction . . . to the words of the fundamental law in which they are embodied.’ . . .

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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.

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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 prosecution of Bartkus. . . .

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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 between federal and state authorities in criminal law enforcement is to be desired and encouraged, for cooperative federalism in this field can indeed profit the Nation and the States in improving methods for carrying out the endless fight against crime. But the normal and healthy situation consists of state and federal officers cooperating to apprehend lawbreakers and present the strongest case against them at a single trial, be it state or federal. Cooperation in order to permit the Federal Government to harass the accused so as to deny him his protection under the Fifth Amendment is not to be tolerated as a legitimate requirement of federalism. The lesson of the history which wrought the Fifth Amendment's protection has taught us little if that shield may be shattered by reliance upon the requirements of federalism and state sovereignty to sustain this transparent attempt of the Federal Government to have two tries at convicting Bartkus for the same alleged crime. What happened here was simply that the federal effort which failed in the federal courthouse was renewed a second time in the state courthouse across the street. Not content with the federal jury's resolution of conflicting testimony in Bartkus' favor, the federal officers engineered this second prosecution and on the second try obtained the desired conviction. It is exactly this kind of successive prosecution by federal officers that the Fifth Amendment was intended to prohibit. This Court has declared principles in clearly analogous situations which I think should control here. In Rea v. United States, . . . the Court held that an injunction should issue against a federal agent's transference of illegally obtained evidence to state authorities for use as the basis of a state charge. If the federal courts have power to defeat a state prosecution by force of their supervision of federal officers, surely the federal courts have power to defeat a state prosecution transparently employed by federal authorities in violation of the Fifth Amendment. In Knapp v. Schweitzer, . . . we declared: ‘Of course the Federal Government may not take advantage of . . . the States' autonomy in order to evade the Bill of Rights.’ . . . These principles require, I think, that we set aside the state conviction. . . .