359 U.S. 121 (1959), 1, Bartkus v. Illinois

Docket Nº:No. 1
Citation:359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684
Party Name:Bartkus v. Illinois
Case Date:March 30, 1959
Court:United States Supreme Court

Page 121

359 U.S. 121 (1959)

79 S.Ct. 676, 3 L.Ed.2d 684




No. 1

United States Supreme Court

March 30, 1959

Argued November 19, 1957

Affirmed by an equally divided Court January 6, 1958

Rehearing granted, judgment vacated and case restored to

calendar for reargument May 26, 1958

Reargued October 21-22, 1958


Petitioner was tried and acquitted in a Federal District Court for violation of 18 U.S.C. § 2113, which makes it a crime to rob a federally insured bank. On substantially the same evidence, he was later tried and convicted in an Illinois State Court for violation of an Illinois robbery statute.


1. The cooperation of federal law enforcement officers with Illinois officials did not violate the Double Jeopardy Clause of the Fifth Amendment. Pp. 122-124.

2. The Fourteenth Amendment does not impliedly extend the first eight amendments to the States. Pp. 124-126.

3. The Illinois prosecution for violation of its own penal law after a prior acquittal for a federal offense, on substantially the same evidence, did not violate the Due Process Clause of the Fourteenth Amendment. Pp. 127-139.

7 Ill.2d 138, 130 N.E.2d 187, affirmed.

FRANKFURTER, J., lead opinion

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,

Page 122

the General Savings and Loan Association of Cicero, Illinois, in violation of 18 U.S.C. § 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, 1951, c. 38, § 501, 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. Ill.Rev.Stat., 1951, c. 38, § 602.

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 [79 S.Ct. 678] 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

Page 123

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.1 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

Page 124

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.2 The relevant historical materials have been [79 S.Ct. 679] canvassed by this Court and by legal scholars.3 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 shorthand 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

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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.4 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.5

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Similarly imposing evidence of the understanding of the Due Process Clause is supplied by the history of the admission of the twelve States entering the Union after the ratification of the Fourteenth Amendment. In the case of each, Congress required that the State's constitution be "not repugnant" to the Constitution of the United States.6 Not one of the constitutions of the twelve States contains all three of the procedures relating to grand jury, criminal jury, and civil jury. In fact, all twelve have provisions obviously different from the requirements of the Fifth, Sixth, or Seventh Amendments. And yet, in the case of each admission, either the President of the United States or Congress or both have found that the constitution was in conformity with the Enabling Act and the Constitution of the United States.7 Nor is there warrant to believe that the [79 S.Ct. 680] States, in adopting constitutions with the specific purpose of complying with the requisites of admission, were, in fact, evading the demands of the Constitution of the United States.

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

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Amendment and concluded that it was intended to be a flexible concept, responsive to thought and experience -- experience which is reflected in a solid body of judicial opinion, all manifesting deep convictions to be unfolded by a process of "inclusion and exclusion." Davidson v. New Orleans, 96 U.S. 97, 104. Time and again, this Court has attempted by general phrases not to define but to indicate the purport of due process, and to adumbrate the continuing adjudicatory process in its application. The statement by Mr. Justice Cardozo in Palko v. Connecticut, 302 U.S. 319, has especially commended itself and been frequently cited in later opinions.8 Referring to specific situations, he wrote:

In these and other situations, immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states.

302 U.S. at 324-325....

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