359 U.S. 121 (1959)
Alfonse Bartkus was tried in the United States District Court for the Northern District of Illinois on December 18, 1953.1 He faced a charge of robbing the General Savings and Loan Association of Cicero, Illinois, a federally insured savings and loan association, in violation of 18 U.S.C. § 2113.2 The case was tried to a jury and resulted in an acquittal.3
On January 8, 1954, an Illinois grand jury indicted Bartkus.4 The facts recited in the Illinois indictment were substantially identical to those contained in the prior federal indictment.5 The Illinois indictment charged that these facts constituted a violation of Illinois Revised Statutes, 1951, c. 38, § 501, a robbery statute.6 Bartkus was tried and convicted in the Criminal Court of Cook County.7 He was sentenced to life imprisonment under the Illinois Habitual Criminal Statute, Ill. Rev. Stat., 1951, c. 38, § 602.8 The Illinois Supreme Court affirmed the conviction.9
The federal and state prosecutions were separately conducted.10 An FBI agent 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.11 Some of that evidence had been gathered after acquittal in the federal court.12 There was a suggestion that the federal sentencing of the accomplices who testified against petitioner in both trials was purposely continued by the federal court until after they testified in the state trial.13
The record establishes that the prosecution was undertaken by state prosecuting officials within their discretionary responsibility.14 It was based on evidence that conduct contrary to the penal code of Illinois had occurred within their jurisdiction.15 Federal officials acted in cooperation with state authorities as is the conventional practice between the two sets of prosecutors throughout the country.16 The Supreme Court granted certiorari because the petition raised a substantial question concerning the application of the Fourteenth Amendment.17 On January 6, 1958, the judgment below was affirmed by an equally divided Court.18 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.19
Whether, after a defendant has been tried and acquitted in a federal court for a federal offense, a state may, without denying the defendant due process of law, try the defendant for the same acts under a state statute making such acts a state offense?20
Yes. The dual sovereignty doctrine is rooted in the principle that the federal government and the states derive power from different sources.23 Each may punish violations of its own laws.24 This allows successive prosecutions for the same conduct when the offenses are distinct under each sovereign's statutes.25
Applying this rule to the established facts, Bartkus was acquitted by a federal jury on December 18, 1953.26 The acquittal followed trial in the United States District Court for the Northern District of Illinois on a charge of robbing the General Savings and Loan Association of Cicero in violation of 18 U.S.C. § 2113.27 On January 8, 1954, an Illinois grand jury indicted him for the same robbery under Illinois Revised Statutes, 1951, c. 38, § 501.28 Bartkus was convicted in the Criminal Court of Cook County and sentenced to life imprisonment under the Illinois Habitual Criminal Statute.29 The federal and state prosecutions were separately conducted by their respective officials.30 The state prosecution was undertaken on the basis of evidence that conduct contrary to Illinois penal law had occurred within state jurisdiction.31 Federal agents cooperated by turning over evidence as is conventional practice.32
The Illinois Supreme Court affirmed the conviction. The record does not establish that the state prosecution was a sham or cover for a federal retrial.33 The Fourteenth Amendment does not incorporate the double jeopardy provision of the Fifth Amendment.34 Cooperation between sovereigns does not convert the state action into a denial of due process.35
The Illinois prosecution of Bartkus after his federal acquittal did not deny him due process of law.36
Related opinions on this issue
Joined by Warren, C. J., And Douglas, J.
Justice Black dissented on the ground that the Fourteenth Amendment incorporates the double jeopardy provision of the Fifth Amendment and makes it applicable to the states.37 He argued that fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas in western civilization.38 It is rooted deeply in Greek and Roman times and carried forward through English common law into the American constitutional tradition.39
Black maintained that from the standpoint of the individual it is too subtle to distinguish between prosecutions by different sovereigns.40 Double punishment hurts no less when both state and federal power is brought to bear in two trials.41 He would overrule the dual sovereignty doctrine and hold that a federal acquittal bars subsequent state prosecution for the same acts.42
Joined by Warren, C. J., And Douglas, J.
Justice Brennan dissented on the ground that the state prosecution was in actuality a second federal prosecution engineered by federal authorities after they were displeased with the federal acquittal.43 He detailed how federal officials solicited the state indictment, arranged for key witnesses to testify, unearthed additional evidence to discredit Bartkus and his alibi witnesses, and in general prepared and guided the state case.44 This included postponing sentencing of accomplices until after they testified in state court.45
Brennan concluded that this level of federal participation constituted an evasion of the Fifth Amendment protection against double jeopardy.46 The federal effort that failed in the federal courthouse was renewed a second time in the state courthouse across the street.47 He argued that allowing such successive prosecutions would leave no restraints on the use of state machinery by federal officers to achieve a second federal try at conviction.48