Palko v. Connecticut


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.[1]

Palko v. Connecticut
Argued November 12, 1937
Decided December 6, 1937
Full case namePalko v. State of Connecticut
Citations302 U.S. 319 (more)
58 S. Ct. 149; 82 L. Ed. 288; 1937 U.S. LEXIS 549
Case history
PriorState v. Palko, 122 Conn. 529, 191 A. 320 (1937); probable jurisdiction noted, 58 S. Ct. 20 (1937).
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 E. Hughes
Associate Justices
James C. McReynolds · Louis Brandeis
George Sutherland · Pierce Butler
Harlan F. Stone · Owen Roberts
Benjamin N. Cardozo · Hugo Black
Case opinions
MajorityCardozo, joined by McReynolds, Brandeis, Sutherland, Stone, Roberts, Black
Laws applied
U.S. Const. amend. V, U.S. Const. amend. XIV
Overruled by
Benton v. Maryland, 395 U.S. 784 (1969)


In 1935, Frank Palko, a Connecticut resident, broke into a local music store and stole a phonograph, proceeded to flee on foot, and, when cornered by law enforcement, shot and killed two police officers and made his escape. He was captured a month later.[2]

Palko had been charged with first-degree murder but was instead convicted of the lesser offense of second-degree murder and was 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 then 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.


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

Applying the subjective case-by-case approach (known as selective incorporation), the Court upheld Palko's conviction on the basis that the double jeopardy appeal 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.

Palko was executed in Connecticut's electric chair on April 12, 1938.[3]

Later developmentsEdit

The Court eventually reversed course and overruled Palko by incorporating the protection against double jeopardy with its ruling in Benton v. Maryland.[4]

See alsoEdit


  1. ^ Palko v. Connecticut, 302 U.S. 319 (1937).
  2. ^ "Double Jeopardy – Two Bites of the Apple or Only One?" by Charles A. Riccio Jr., July 1997.
  3. ^ Palko v. Connecticut, Oyez (last visited June 3, 2018).
  4. ^ Benton v. Maryland, 395 U.S. 784 (1969).

External linksEdit

  •   Works related to Palko v. Connecticut at Wikisource
  • Text of Palko v. Connecticut, 302 U.S. 319 (1937) is available from: CourtListener  Findlaw  Google Scholar  Justia  Library of Congress  Oyez (oral argument audio)