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.
^1 U.S.Const., Amend. XVIII. See, e.g., Note 55, Col.L.Rev. 83, 89, n. 38. Lanza is severely criticized in Grant, The Lanza Rule of Successive Prosecutions, 32 Col.L.Rev. 1309; Grant, Successive Prosecutions by State and Nation: Common Law and British Empire Comparisons, 4 U.C.L.A.L.Rev. 1.
^2 The Court today seems to rely on the argument, also made in Lanza, 260 U.S. at page 385, 43 S.Ct. at page 143, that failure to allow federal prosecutions after state trials might endanger federal law. States, the argument runs, might establish minor punishments for conduct which violates United States statutes. Criminals could then plead guilty in state courts and be safe from federal justice. Whatever the merits of the argument in the context of the Eighteenth Amendment, it can have no validity here. As we pointed out in Bartkus v. People of Illinois, 359 U.S. 150, 79 S.Ct. 695 (dissenting opinion), if Congress has power to make certain conduct a federal crime, it also has power to protect the national interest. It can take exclusive jurisdiction over the crime or, if it wishes to allow the States concurrent power, it can define the offense and set minimum penalties which would be applicable in both state and federal courts. In addition, should the state trial prove to be a sham, it might be that no jeopardy could be shown and that a subsequent federal trial would be constitutional. See, e.g., Edwards v. Commonwealth, 233 Ky. 356, 25 S.W.2d 746. Cf. United States v. Mason, 213 U.S. 115, 125, 29 S.Ct. 480, 483, 53 L.Ed. 725. It therefore appears that federal laws can easily be safeguarded without requiring defendants to undergo double prosecutions.
^3 Almost all of the States have constitutional provisions similar to the Double Jeopardy Clause of the Federal Constitution. See Brock v. State of North Carolina, 344 U.S. 424, 429, 435, 73 S.Ct. 349, 351, 354, 97 L.Ed. 456 (dissenting opinion).
^5 See Grant, The Lanza Rule of Successive prosecutions, 32 Col.L.Rev. 1309; Grant, Successive Prosecutions by State and Nation: Common Law and British Empire Comparisons, 4 U.C.L.A.L.Rev. 1.
^6 At the time the amendment was offered the Double Jeopardy Clause under discussion read: 'No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offense.' 1 Annals of Cong., 434 (1789). If the amendment had passed the clause would have read: 'No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence by any law of the United States.' Id., at page 753.