The double jeopardy clause of the Fifth Amendment provides that no person shall ‘‘be subject for the same offense to be twice put in jeopardy of life or limb.’’ It provides protection against a second prosecution for the same offense following either an acquittal or conviction, and protects against multiple punishments for the same offense. In Benton v. Maryland (1969), the Supreme Court held that the double jeopardy clause is incorporated into the due process clause of the Fourteenth Amendment and thereby made applicable to the states.
Prior to the adoption of the Fourteenth Amendment, the Supreme Court held that the specific guarantees of the Bill of Rights, the first eight amendments to the Constitution, applied only to the federal government (Barron v. Mayor of City of Baltimore ). Thus, at this time, the Bill of Rights was not binding on state and local government. After the adoption of the Fourteenth Amendment in 1868, the question arose whether the Fourteenth Amendment incorporated any or all of the Bill of Rights. The Supreme Court has followed a process of selective incorporation pursuant to which it has determined on a case-by-case basis whether the particular right should be incorporated.
The most well-known test used to determine which rights are incorporated was articulated by Justice Cardozo in Palko v. Connecticut (1937). Under Palko, incorporation depends on whether the particular right is ‘‘of the very essence of a scheme of ordered liberty,’’ or is ‘‘a principle or justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’’
The Court framed the specific issue in Palko: Did the state court’s denial of double jeopardy protection ‘‘violate those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions’?’’ The Court held that ‘‘[t]he answer surely must be ‘no.’’’
Three decades later, the Court in Benton v. Maryland reached the opposite result and overruled Palko v. Connecticut. By the time Benton was decided, the Court’s approach to the incorporation issue had changed. Under Palko the Court made a record-specific evaluation in order to determine whether deprivation of the right in issue violated the defendant’s right to due process. In later cases, however, the Court took a wholesale approach and inquired whether the right at issue should be incorporated.
The Court in Benton found that the Fifth Amendment protection against double jeopardy is of ‘‘the very essence of a scheme of ordered liberty,’’ a ‘‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’’ In reaching this conclusion, the Court relied upon (1) the historical importance of the double jeopardy protection, as ‘‘its origins can be traced to Greek and Roman times’’ and was ‘‘established in the common law of England long before this Nation’s independence’’; (2) state practices: ‘‘every State incorporates some form of the prohibition [against double jeopardy] in its constitution or common law’’; and (3) the practical importance of the right, namely, its protection against the ‘‘embarrassment, expense and ordeal’’ and being compelled ‘‘to live in a continuing state of anxiety and insecurity’’ from multiple prosecutions for the same offense.
So, as a result of the decision in Benton v. Maryland, the states, like the federal government, must grant individuals protection against double jeopardy.
MARTIN A. SCHWARTZ
References and Further Reading
Cases and Statutes Cited
See also Double Jeopardy (V): Early History, Background, Framing; Incorporation Doctrine