Bartkus v. Illinois

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 a,sso-*122ciation, 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 con-' ducted. 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 foufld in a suggestion that the federal sentencing of the accomplices who testified against petitioner in both *123trials 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 arid 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 *124a 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 Ólause 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 Fourteénth 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 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 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 *125Constitution. 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 qnder-taking 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.

*126Similarly 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 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 *127Amendment 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.

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 *128balancing relevant and conflicting factors in the judicial application of that Clause. In Chambers v. Florida, 309 U. S. 227, we held that a state ^conviction of murder was void because it was based upon a confession elicited by applying third-degree methods to the defendant. But we have, also held that a second execution necessitated by a mechanical failure in the first attempt was not in violation of due process. Louisiana ex rel. Francis v. Resweber, 329 U. S. 459. Decisions under the Due Process Clause require close and perceptive inquiry into fundamental principles of our society. The Anglo-American system of law is based not upon transcendental revelation but upon the conscience of society ascertained as best it may' be by a tribunal disciplined for the task and environed by the best safeguards for disinterestedness and detachment.

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.9 The Fifth *129Amendment’s proscription of double jeopardy has been invoked and rejected in over twenty cases of real or hypothetical successive state and federal prosécution cases before this Court. While United States v. Lanza, 260 U. S. 377, 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. Ohio, 5 How. 410, more than one hundred years ago.

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 citizéns 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,10 North Carolina,11 and Virginia,12 it had been said that there would be no plea in bar to prevent the second prosecution. *130Discussions in two cases in South Carolina were in conflict — the earlier opinion 13 expressing belief that there would be a bar, the later,14 without acknowledging disagreement with the first, denying the availability of a plea in bar. In three other States, Vermont,15 Massachusetts,16 and Michigan,17 courts had stated that a prosecution by one government would bar prosecution by another government of a crime based on the same conduct. The persuasiveness of the Massachusetts and Michigan decisions is somewhat impaired by the precedent upon which they relied in their reasoning. In the Supreme Court case cited in the Massachusetts and Michigan cases, Houston v. Moore, 5 Wheat. 1, there is some language to the effect that there would be a bar to a second prosecution by a different government. 5 Wheat., at 31. But that language by Mr. Justice Washington reflected his belief that the state statute imposed state sanctions for violation of a federal criminal law. 5 Wheat., at 28. As he viewed the matter, the two trials would not be of similar crimes arising out of the' same conduct; they would be of the same crime. Mr. Justice Johnson agreed that if the state courts had become empowered to try the defendant for the federal offense, then such a state trial would bar a federal prosecution. 5 Wheat., at 35. Thus Houston v. Moore can be cited only for the presence of a bar in a case in which the second trial is for a violation of the very statute whose violation by the same conduct has already been tried in the courts of another government empowered to try that question.18

*131The 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. Ohio, continued in United States v. Marigold, 9 How. 560, and was completed in Moore v. Illinois, 14 How. 13. Mr. Justice Grier, writing for the Court in Moore v. Illinois, gave definitive statement to the rule which had-been evolving:

“An offence, in its legal signification, means the transgression of a law.” 14 How., at 19.

“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.” 14 How., at 20.

“That either or both may (if they see fit) punish such an offender, , cannot be doubted. Yet it cannot *132be 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.” Ibid.

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.19 Since Lanza the Court has five times repeated the rule that successive state and federal prosecutions are not in violation of the Fifth Amendment.20 Indeed Mr. Justice Holmes once wrote-of this rule that it “is too plain to need moré than statement.”21 One of the post-Lanza cases, Jerome v. United States, 318 U. S. 101, involved the same federal statute under which Bartkus was indicted and in Jerome this Court recognized that successive state and federal prosecutions were thereby made possible because all States had general robbery statutes. Nonetheless, a unanimous Court, as recently as 1943, accepted as unquestioned constitutional law that such successive prosecutions would not violate the proscription of double *133jeopardy included in the Fifth Amendment. 318 U. S., at 105.22

The lower federal coürts have of course been in accord with this Court.23 Although some can be cited only in *134that they follow the decisions of this Court, others manifest reflection upon the issues involved and express reasoned approval of the two-sovereignty principle. In United States v. Barnhart, 22 F. 285, the Oregon Circuit Court was presented with a case just the obverse of the present one: the prior trial and acquittal was by a state court; the subsequent trial was by a federal court. The Circuit Court rejected defendant’s plea of autrefois acquit, saying that the hardship of the second trial might operate to persuade against the bringing of a subsequent prosecution but could not bar it.

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 prose*135cution was or would be barred.24 These States were not bound to follow this Court and its interpretation of the Fifth Amendment. The rules, constitutional, statutory, or common law which bound them, drew upon the same *136experience as did the Fifth Amendment, but were and are of separate and independent authority.

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 á 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 com*137mends itself in aid of this interpretation of the Fourteenth Amendment. In Screws v. United States, 325 U. S. 91, defendants were tried and convicted in a federal court under federal statutes with maximum sentences of a year and two. years respectively. But' the state crime there involved was a capital offense. Were the federal prosecution of a comparatively minor offense to prevent state prosecution of so grave an infraction of state law, the result would be a shocking and untoward deprivation of the historic right arid obligation of the States to maintain peace and order within their confines. It would be in derogation of our federal system to displace the reserved power of States over state offenses by reason of prosecution of minor federal offenses by federal authorities beyond the control of the States.25

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 Brandéis has written that separation of powers was adopted in the Constitution “not to promote efficiency but to preclude the exercise of arbitrary power.” 26 Time has not lessened the concern of the Founders in devising a federal system which would likewise be a safeguard against arbitrary government. *138The greatest self-restraint is necessary when that federal system yields results with which a court is in little sympathy.

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.27 A study of the cases under the New York statute,28 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.29 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 Amend*139ment 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.30

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.

Affirmed.

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