The Supreme Court yesterday rebuffed an effort to end the immunity of corporations from being tried twice on the same criminal charge.
The government had contended that persons but not "incorporeal abstractions" - which "cannot be imprisoned" and "have no emotions" - are entitled to the constitutional protection against so-called double jeopardy.
The court let stand a decision by the Second U..S Circuit Court of Appeals that "fundamental fairness" precluded a second effort to convict a now-defunct Long Island, N.Y., bank of criminal wrongdoing.
Justice Potter Stesart and Byron R. White wanted the high court to review the case. The court grants review when at least four of its nine members vote to do so.
In 1975, a federal grand jury indicted Security National Bank for violating the election laws by making political contributions through more than 40 bank officers.
On the face of it, the officers as individuals made contributions to public officials who were empowered to deposit municipal funds in Security National accounts that pay no interest.
Actually, the indicment charged, the bank compensated each officer who agreed to participate in the scheme with a "pay raise" of $1,700 - $1,200 for contributions, and $500 to cover increased liability for personal income taxes.
A jury acquitted the bank last August gust after receiving an instruction by U.S. District Judge Mark A. Constantino under which it could find the bank guilty only if the contributions had been proved to have been "actually made with bank funds."
The "patently erroneous" instruction amoented to a direction to acquit the bank, the babk, the government argued.
The jury did aquit, leading David G. Trager, U.S. attorney for the Eastern District of New York, to seek to have the verdict set aside and to have a second trial on the ground that Constantino had committed "critical errors."
In December, the appellate court rejected Trager's mition - which was unprecedented - on the ground that it constituted double jeoparty to a "person."
"No corporation, no matter how large, can pit its resources against the overwhelming might of the state so as to avoid harassment and the increasing probability of conviction resulting from reprosecutions," the court said.
In a brief requesting the Supreme Court to review the decision, acting Solicitor General Daniel M. Friedman said theat as errors in the government's favor remain reviewable on appeal, so should errors in favor of "incorporeal abstractions."
Because different trial judges may accord varied treatment to identical offenses my multiple corporations, lack of access to appellate courts in criminal corporate cases "undermines the ability of the criminal justice system effectively to carry out the task of enforcing compliance with the law." Friendman said.
He also argued that the double jeopardy protection is not owed corporations because the only sanction against them is money judgments. The constitutional protection is framed in terms of "life or limb" which, he noted, the courts have interpreted to mean the imprisonment possible only for flesh-and-blood defendants. Nuclear Power
The court agreed to review a ruling by the Second U.S. Circuit Court of Appeals that bars the Nuclear Regulatiory Commission from considering how industry might use a mixture of plutonium oxide and uranium oxide, a controversial type of nuclear fuel hitherto used on a limited non-comercial basis.
The Natural Resources Defense Council had blocked the NRC from entertaining industry license applications to use the fuel on the ground that it was too hazardous. President Carter has indicated he does not want such licenses granted at least until the year 2,000. Antitrust
The court agreed to review the question whether a city government is liable to antitrust treble-damage suits. The Fifth U.S. Circuit Court of Appeals ruled last May that the Cities of Lafayette and Plaquemine, La., which operate municipal public utilities, could be sued by the Louisiana Power and Light Co.