Palko v. Connecticut
The Court upheld a Connecticut law letting the state appeal criminal cases and get a new trial when the first trial had serious legal errors, even though the second trial ended in a harsher sentence.
The ruling set out an influential test for deciding which Bill of Rights protections apply to the states through the Fourteenth Amendment: only those 'implicit in the concept of ordered liberty' without which fairness itself would be impossible.
“Is that kind of double jeopardy to which the statute has subjected him a hardship so acute and shocking that our polity will not endure it?”
The core question the Court used to decide whether the retrial violated due process.
How it got here: Connecticut's highest court twice ruled against the defendant, first ordering a retrial on the state's appeal and then affirming the resulting conviction; he appealed directly to the Supreme Court.
The Case in Depth
What happened
Connecticut charged a man with first-degree murder; a jury instead convicted him of second-degree murder and he was sentenced to life in prison. Under a state law allowing prosecutors to appeal legal errors, the state appealed, won a new trial due to errors favoring the defendant, and at the second trial he was convicted of first-degree murder and sentenced to death.
The question before the Court
After winning an appeal because of trial errors, could Connecticut retry a man for murder and have him convicted of a more serious crime the second time?
Why it matters
The decision meant states could pass laws allowing prosecutors, not just defendants, to appeal trial errors, exposing retried defendants to harsher outcomes. It also shaped constitutional law for decades by giving courts a framework for deciding case by case which individual rights bind the states, rather than applying all federal Bill of Rights protections automatically.
What changes now
The conviction and death sentence stood as final; the defendant had no further avenue under this ruling to challenge the retrial on double jeopardy grounds. More broadly, the decision's 'ordered liberty' framework became the guiding test courts used for years afterward in deciding, one right at a time, which Bill of Rights protections apply to state governments.
What this does not decide
The Court expressly limited its holding to the Connecticut statute before it, which allowed one state appeal to correct legal errors. It said it was not deciding whether a state could keep retrying someone after an error-free trial, or bring entirely separate prosecutions against the same person.
Concurrences and dissents
Dissent — Justice Butler
Justice Butler dissented from the Court's judgment but did not file a written opinion explaining his reasoning, so the basis for his disagreement is not stated in the record.
How the Court got there
The legal reasoning, step by step
- The Court explained that the Fifth Amendment's double jeopardy protection binds only the federal government, so the question was whether being retried this way violated the separate Fourteenth Amendment promise that states cannot take life or liberty without due process of law.
- The Court rejected the argument that every protection in the first eight amendments automatically applies to the states through the Fourteenth Amendment, noting it had already allowed states to skip grand jury indictments, limit jury trials, and narrow the right against self-incrimination without violating due process.
- The Court distinguished those flexible protections from ones it called essential to 'ordered liberty' — freedoms like speech, press, religion, assembly, and the right to counsel in serious cases — which do bind the states because losing them would undermine the basic fairness of any justice system.
- Applying that dividing line, the Court asked whether letting the state appeal legal errors and retry the case was the kind of hardship so acute and shocking that it violates fundamental principles of justice, rather than whether it technically matched the federal double jeopardy label.
- The Court concluded that a single retrial aimed only at correcting legal errors — not repeated harassment through endless prosecutions — was not the kind of shocking unfairness the Constitution's guarantee of liberty was meant to prevent.