Abbate v. United States/Dissent Black

Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.

Petitioners, Abbate and Falcone, were convicted in an Illinois State Court of conspiracy to blow up certain property located in Mississippi and adjoining States. After receiving prison sentences in Illinois they were indicted and convicted of the same conspiracy in the Federal District Court of Mississippi and again sentenced to prison. The Court now affirms their second sentences over the contention that the federal conviction violates the double jeopardy provision of the Fifth Amendment.

In support of its affirmance, the Court points to United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314. In that case, this Court sustained Lanza's conviction for handling liquor contrary to federal law, after Lanza had been convicted under state law of handling the same liquor at the same time and place. Some writers have explained Lanza as justified by the broad language of the Prohibition Amendment which was then in effect and which gave the States and the Federal Government concurrent power to control liquor traffic. The Court's opinion, in Lanza, however, seemed rather to rely on dicta in a number of past cases in this Court. These had assumed that identical conduct of an accused might be prosecuted twice, once by a State and once by the Federal Government, because the 'offense' punished by each is in some, meaningful, sense different. The legal logic used to prove one thing to be two is too subtle for me to grasp. See, generally, Bartkus v. People of Illinois, 359 U.S. 150, 79 S.Ct. 695 (dissenting opinion).

I am also not convinced that a State and the Nation can be considered two wholly separate sovereignties for the purpose of allowing them to do together what, generally, neither can do separately. In the first place, I cannot conceive that our States are more distinct from the Federal Government than are foreign nations from each other. And it has been recognized that most free countries have accepted a prior conviction elsewhere as a bar to a second trial in their jurisdiction. In the second place, I believe the Bill of Rights' safeguard against double jeopardy was intended to establish a broad national policy against federal courts trying or punishing a man a second time after acquittal or conviction in any court. It is just as much an affront to human dignity and just as dangerous to human freedom for a man to be punished twice for the same offense, once by a State and once by the United States, as it would be for one of these two Governments to throw him in prison twice for the offense. Perhaps a belief that this is true was responsible for the fact that a proposed amendment to the Double Jeopardy Clause was rejected in our First Congress while the Bill of Rights was being considered. If that amendment had been adopted the Clause apparently would have barred double prosecutions for 'the same offense' only if brought under 'any law of the United States.' 1 Annals of Cong., 753 (1789). I fear that this limitation on the scope of the Double Jeopardy Clause, which Congress refused to accept, is about to be firmly established as the constitutional rule by the Court's holding in this case and in Bartkus v. People of Illinois, 359 U.S. 121, 79 S.Ct. 676.

I would reverse both convictions.