DOUBLE JEOPARY CASES
Frank Palko had been charged with first-degree murder. He was convicted instead of second-degree murder and sentenced to life imprisonment. The state of Connecticut appealed and won a new trial; this time the court found Palko guilty of first-degree murder and sentenced him to death.
Does Palko's second conviction violate the protection against double jeopardy guaranteed by the Fifth Amendment because this protection applies to the states by virtue of the Fourteenth Amendment's due process clause?
8–1 Decision for Connecticut
Protection against double jeopardy is not a fundamental right and thus falls outside constitutional protection.
The Supreme Court upheld Palko's second conviction. In his majority opinion, Cardozo formulated principles that were to direct the Court's actions for the next three decades. He noted that some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right. Palko died in Connecticut's electric chair on April 12, 1938.
In the midst of a labor strike against Southern Bell Telephone Company, Louis Joseph Abbate, Michael Louis Falcone, and Norman McLeod met with James Shelby, a union official, in a Chicago tavern. Shelby requested the othersŐ assistance in carrying out plans to bomb certain Southern Bell facilities in Mississippi, Louisiana, and Tennessee. Abbate and Falcone did not go through with the plan and instead informed Chicago police when McLeod obtained dynamite and traveled to Mississippi. The State of Illinois subsequently charged all four with the crime of conspiring to destroy the property of another. Abbate and Falcone pled guilty and were sentenced to three months in prison each. Because several of the targeted facilities were used exclusively by the military and federal agencies, federal prosecutors subsequently charged Abbate, Falcone, and Shelby with conspiring to destroy property essential to the U.S. communications systems. At trial in federal district court, McLeod testified against his former co-conspirators, and the jury found them guilty. The U.S. Court of Appeals for the Fifth Circuit affirmed the judgments against Abbate and Falcone on appeal. In their petition to the Supreme Court, Abbate and Falcone argued that the federal prosecution subsequent to their convictions under Illinois law violated the Double Jeopardy Clause of the Fifth Amendment, which prevents someone from being tried more than once for the same crime.
Does the Double Jeopardy Clause of the Fifth Amendment prohibit federal prosecutions that are based on the same facts that underpin a defendantŐs conviction under state law?
No. Justice William J. Brennan, Jr. delivered the opinion for the 6-3 majority. The Court held that the Double Jeopardy Clause does not apply to a federal prosecution that follows a state prosecution of the same person for the same actions. Rather, the separate prosecutions reflect the concurrent power of the state and federal governments to enforce their separate statutes. Moreover, the Court held that allowing the Double Jeopardy Clause to bar subsequent prosecutions by the other level of government would hinder the law enforcement capability of that entity.
In a separate opinion, Justice Brennan commented on the federal governmentŐs argument in favor of affirming the convictions. He found the implications disturbing as the argument potentially allowed successive prosecutions of the same person by the same level of government. Justice Brennan reiterated that the Double Jeopardy Clause protects the notion that individuals should only have to spend money and time defending themselves once for a single crime.
Justice Hugo L. Black wrote a dissent in which he argued that, under the Double Jeopardy Clause, Abbate and FalconeŐs subsequent federal prosecution was just as troubling as Illinois imprisoning them twice for their role in the conspiracy. Expressing skepticism towards the concurrent powers theory relied on by the Court, Justice Black noted that foreign nations, unlike state and federal governments, are completely distinct sovereigns, yet many nations refuse to prosecute an individual following a prosecution in another country for the same acts. Additionally, the legislative history of the Double Jeopardy clause showed that language that would have restricted the clause to prohibit only successive prosecutions by the same government had been rejected. Chief Justice Earl Warren and Justice William O. Douglas concurred in the dissent.
Bartkus v. Illinois (1959)
Double jeopardy does not attach after trial and acquittal in federal court followed by trial and conviction for the same crime in state court