BARTKUS v. ILLINOIS 359 U.S. 121 (1959) ABBATE v. UNITED STATES 359 U.S. 187 (1959)

A 5–4 Supreme Court held in Bartkus v. Illinois that close cooperation between state and federal officials did not violate the double jeopardy clause when Illinois tried (and convicted) Bartkus for a robbery of which a federal court had acquitted him. Justice felix frankfurter's majority opinion de-emphasized the connection between the prosecutions. Despite "substantially identical" indictments and although the Federal Bureau of Investigation had given all its evidence to state authorities, Frankfurter could find no basis for the claim that Illinois was "merely a tool of the federal authorities" or that the Illinois prosecution violated the due process clause of the four-teenth amendment. He rejected the assertion that the Fourteenth Amendment was a "short-hand incorporation" of the bill of rights and also cited the test of palko v. connecticut (1937) with approval.

Justice hugo l. black, joined by Chief Justice earl warren and Justice william o. douglas, dissented. Black found such prosecutions "so contrary to the spirit of our free country that they violate even the prevailing view of the Fourteenth Amendment." Justice william j. brennan, dissenting separately, presented convincing evidence that federal officers solicited, instigated, guided, and prepared the Illinois case, amounting to a second federal prosecution "in the guise of a state prosecution."

Justice Brennan joined the Bartkus majority in Abbate v. United States, decided the same day. The defendants here were indicted and convicted in both state and federal courts for the same act, the federal prosecution following the state conviction. Brennan, for the majority, relied squarely on united states v. lanza (1922), concluding that "the efficiency of federal law enforcement must suffer if the Double Jeopardy Clause prevents successive state and federal prosecutions." Black, for the same minority, relied on his Bartkus dissent and the distinction "that a State and the Nation can [not] be considered two wholly separate sovereignties for the purpose of allowing them to do together what, generally, neither can do separately."

David Gordon
(1986)