Brief Fact Summary. Defendant Palko is tried and convicted of murder for a second time after state appeals previous murder conviction on same events.
Synopsis of Rule of Law. The double jeopardy prohibition provision included in the Fifth Amendment is not applied to the states through the Fourteenth Amendment.
Issue. Does the entire Fifth Amendment double jeopardy prohibition apply to the states through the Fourteenth Amendment?
Held. No. The Supreme Court of the United States affirms the first degree murder conviction and the accompanying death sentence.
Two requirements need to be met for a state to appropriately choose to not include the prohibition on double jeopardy, or any other piece of the 5th Amendment, in its law. They do not have to incorporate such a right if it is not of the very essence of a scheme of ordered liberty, and if its abolishment would not violate a principal of justice so rooted in the traditions and conscience of the American people as to be ranked fundamental. Here, the Supreme Court saw the state’s allowing a second trial on the same facts as not violating fundamental principles of liberty and justice because it was only done to make sure that there was a trial without legal error.
Discussion. The Supreme Court’s decision here embracing selective incorporation in stating that the Fifth Amendment double jeopardy prohibition was not entirely applicable to state law through the Fourteenth Amendment was overruled in Benton v. Maryland in 1969. That later case held that the double jeopardy prohibition was a fundamental concept in our constitutional heritage, and thus definitely applied to the states through the Fourteenth Amendment.