SUPREME COURT: Double Jeopardy

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. . . Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.

—Fifth Amendment, U.S. Constitution

As every U.S. schoolboy learns, the Bill of Rights struck down tyranny's "double jeopardy" practice of trying a man more than once for the same crime. But, as any well-educated lawyer knows, a long procession of Supreme Court decisions holds that separate trial by federal and state courts for the same crime is not considered to be double jeopardy. Last week the Supreme Court stuck by precedent in two cases involving federal and state trials—surprising the schoolboys and drawing a stinging dissent from a minority of three of the court's own members.

The cases:

¶ Alfonse Bartkus, ex-convict, charged with robbing a federally insured Cicero savings and loan association in 1953, was found "not guilty'' in federal court, found guilty three weeks later in state court, sentenced to life imprisonment as a habitual criminal.

¶ Louis Joseph Abbate and Michael Louis Falcone, union-hired hoods, lightly sentenced (three months each) by an Illinois court for a plot to blow up Bell Telephone equipment, later got stiffer sentences (three years, one year) in U.S. court for conspiracy to destroy U.S.-used communications lines.

Neither case involved double jeopardy under the Constitution, ruled the majority in both decisions (5-4, 6-3). Central finding: the Constitution's Bill of Rights —including the "double jeopardy" Fifth Amendment—is meant to be binding on the Federal Government only; similar U.S. constitutional rights apply to the states only under the clause in the 14th Amendment,* which provides that no state may deprive a man of "life, liberty or property" without "due process of law."

An act that violates both federal and state statutes can be penalized in both court systems without being considered double jeopardy within either system. Wrote Justice Felix Frankfurter, 76, as he picked the majority's way through court precedent in the Bartkus case: "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."

Dissenting, Justice Hugo Black cracked that "This notion is too subtle for me to grasp," was joined in his usual hard core of liberals by Chief Justice Earl Warren and Justice William O. Douglas. "The court apparently takes the position," charged Black, "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." In a surprising aside he noted that the majority opinions would work a hardship only on "the poor and the weak without friends in high places" who could "influence prosecutors not to try them again."

At week's end, to reassure all that double trials would not become concentrated practice even if within the law. Attorney General William Rogers sent out a memorandum ordering the 94 U.S. attorneys to check with him, personally, before prosecuting any cases that might even look like state-federal double jeopardy.