Palko v. Connecticut (1937)
Frank Jacob Palko was convicted of second-degree murder in 1935 for killing two police officers in Bridgeport, Connecticut, and sentenced to life in prison without parole. The State of Connecticut nevertheless appealed Palko’s conviction under a state law allowing such appeals by the state when errors of law prejudicial to the state had occurred in the trial court. Palko’s second-degree murder conviction was overturned on appeal, and he was retried and convicted of first-degree murder and sentenced to death. Over Palko’s objection that his retrial had constituted double jeopardy, the Connecticut courts upheld his death sentence, and he then appealed his case to the U.S. Supreme Court.
In Palko v. Connecticut (1937), Palko’s attorney argued that the Double Jeopardy Clause of the Fifth Amendment of the Bill of Rights applied in state criminal trials via the Due Process Clause of the Fourteenth Amendment, and that his retrial and conviction of first-degree murder had subjected him to double jeopardy. In addition, counsel for Palko argued that all of the rights in the Bill of Rights should be applied as restrictions on the states via the Fourteenth Amendment—a theory later called the “total incorporation” theory. In an opinion by Justice Benjamin N. Cardozo, the Supreme Court rejected these arguments.
In response to the argument that all of the rights in the Bill of Rights applied to the states, Cardozo said that there was “no such general rule.” He conceded, however, that the Court had held that some rights in the Bill of Rights, such as the freedoms of speech and press, had been “absorbed” by the Fourteenth Amendment and thus made applicable as restrictions of the powers of the states. Those selected rights in the Bill of Rights that had been so absorbed, he said, were “implicit in the scheme of ordered liberty” or “of the very essence of a scheme of ordered liberty.” In the field of criminal procedure, Cardozo also noted, the Due Process Clause of the Fourteenth Amendment protected rights that were essential to a fair trial in the state courts and prohibited any practice “so shocking that our polity will not endure it.” The Connecticut law allowing the state to appeal convictions when errors of law prejudicial to the state had occurred, Cardozo held, did not deny the right to a fair trial, nor did it embody a practice “so shocking our polity will not endure it,” and the Court accordingly affirmed Palko’s conviction.
Justice Cardozo’s opinion in the Palko case is considered to have introduced the concept of the selective incorporation of most, but not all, of the rights in the Bill of Rights into the Fourteenth Amendment, thus making them binding on the states. In Benton v. Maryland (1969), the double jeopardy holding in Palko v. Connecticut was reversed by the Supreme Court when it held that the Double Jeopardy Clause of the Fifth Amendment did in fact apply in state criminal proceedings under the Due Process Clause of the Fourteenth Amendment. Frank Jacob Palko, however, had been executed by the State of Connecticut on April 12, 1938.
Richard C. Cortner
Last Updated: 2006