Frank Palko was charged in Connecticut with first-degree murder after a robbery led to the killing of two police officers. At his first trial, the jury found him guilty of second-degree murder, and he received a life sentence. Connecticut law permitted the State to appeal on questions of law. The State appealed, and the state's highest court reversed the conviction based on trial errors and ordered a new trial. At the second trial, Palko was convicted of first-degree murder and sentenced to death. Palko sought review in the U.S. Supreme Court, arguing that the State's successful appeal and his retrial for a more serious offense violated the Fifth Amendment's Double Jeopardy Clause, which he contended was applicable to the states through the Fourteenth Amendment's Due Process Clause.
Does the Fourteenth Amendment's Due Process Clause incorporate the Fifth Amendment's Double Jeopardy Clause so as to bar a state from retrying a defendant and imposing a harsher sentence after the State successfully appeals the first conviction?
Under the Fourteenth Amendment's Due Process Clause, only those rights that are of the very essence of a scheme of ordered liberty—principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental—are incorporated against the states. Not all provisions of the Bill of Rights apply to the states; only those deemed fundamental to due process are enforced against them.
No. The Double Jeopardy Clause was not, at the time, considered a fundamental right applicable to the states through the Fourteenth Amendment. Connecticut's statute permitting the State to appeal and retry Palko did not violate due process. The conviction and death sentence were affirmed.
Justice Cardozo, writing for the Court, rejected the view that the Fourteenth Amendment automatically applies all of the Bill of Rights to the states. Instead, he advanced a selective approach, under which the Court identifies on a case-by-case basis those rights that are fundamental to the American system of justice. Cardozo explained that some liberties—such as freedom of thought and speech—are of the very essence of ordered liberty and are therefore obligatory on the states, while others, though important, are not essential in the same sense. Applying this framework, the Court reasoned that the Double Jeopardy Clause did not occupy the same privileged position as the most fundamental rights. Cardozo emphasized that retrial following reversal is a familiar practice in American law and that allowing a state to correct trial errors by appeal does not inevitably produce the type of oppression or arbitrary action due process forbids. In Palko's case, the state court's reversal rested on legal error at the first trial; the subsequent proceeding was not a harassing, repetitive prosecution but a single, corrected retrial aimed at reaching a legally proper verdict. Thus, the Court concluded, the practice did not offend fundamental fairness. Because the Double Jeopardy Clause was not deemed fundamental under the "ordered liberty" test, it was not incorporated against the states, and Connecticut's procedure stood. The Court's opinion distinguished between the wholesale application of the Bill of Rights and a more discriminating inquiry into which protections are indispensable to fairness. It thereby entrenched the selective incorporation methodology, even as it declined to include double jeopardy within the set of rights incorporated at that time.
Palko is pivotal for articulating selective incorporation: only rights fundamental to ordered liberty apply to the states through the Fourteenth Amendment. While its specific holding on double jeopardy was overruled by Benton v. Maryland (1969), the case remains vital for its methodology and for understanding the evolution of incorporation. It frames how later cases—such as Duncan v. Louisiana (jury trial), Mapp v. Ohio (exclusionary rule), and Malloy v. Hogan (self-incrimination)—evaluated which protections are fundamental. For students, Palko illustrates how the Court balances historical tradition, functional necessity, and normative judgments about fairness in deciding what due process requires of the states.
Palko v. Connecticut occupies a central place in constitutional law, not because its outcome endured, but because its reasoning crystallized the Court's selective incorporation framework. By distinguishing between rights essential to ordered liberty and those that are not, the Court provided a method for extending core constitutional protections to the states while permitting doctrinal evolution.