Palko v. Connecticut

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Palko v. Connecticut

Argued November 12, 1937
Decided December 6, 1937

Full case name:	Palko v. State of Connecticut

Citations:	302 U.S. 319
Prior history:	Appeal from the Supreme Court of Errors of the State of Connecticut

Holding

The Fifth Amendment right to protection against double jeopardy is not a fundamental right incorporated by the Fourteenth Amendment to the individual states.

Court membership

Chief Justice: Charles Evans Hughes
Associate Justices: James Clark McReynolds, Louis Brandeis, George Sutherland, Pierce Butler, Harlan Fiske Stone, Owen Josephus Roberts, Benjamin N. Cardozo, Hugo Black

Case opinions

Majority by: Cardozo
Joined by: McReynolds, Brandeis, Sutherland, Stone, Roberts, Black
Dissent by: Butler

Laws applied

U.S. Const. amend. V, U.S. Const. amend. XIV

Overruled by

Benton v. Maryland, 395 U.S. 784 (1969)

Palko v. Connecticut, 302 U.S. 319 (1937) was a United States Supreme Court case concerning the incorporation of the Fifth Amendment protection against double jeopardy.

In 1935, Frank Palko, a Connecticut resident, broke into a local music store and stole a radio, proceeded to flee on foot, and when cornered by law enforcement, killed two police officers and made his escape. He was captured a month later.^[1]

Palko had been charged with first-degree murder but was instead convicted of the lesser offense of second-degree murder and given a sentence of life imprisonment. Prosecutors appealed per Connecticut law and won a new trial, in which Palko was found guilty of first-degree murder and sentenced to death. Palko appealed, arguing that the Fifth Amendment protection against double jeopardy applied to state governments through the Due Process Clause of the Fourteenth Amendment. The court had previously held in the Slaughterhouse cases that the protections of the Bill of Rights should not be applied to the states under the Privileges or Immunities clause, but Palko held that since the infringed right fell under a due process protection, Connecticut still acted in violation of the Fourteenth Amendment.

Justice Benjamin Cardozo held that the Due Process Clause only protected those rights that were "of the very essence of a scheme of ordered liberty," and that the court should therefore gradually incorporate the Bill of Rights onto the States as justiciable violations arose, based on whether the infringed right met that test.

Applying this subjective case-by-case approach (known as selective incorporation) the Court upheld Palko's conviction on the basis that the Double Jeopardy protection was not "essential to a fundamental scheme of ordered liberty." The case was decided by an 8-1 vote. Justice Pierce Butler was the lone dissenter, but he did not author a dissenting opinion.

The Court eventually reversed course and incorporated the protection against double jeopardy with its ruling in Benton v. Maryland (1969).