Concept
Incorporation Against the States
Attachment and incorporation
Incorporation Against the States
The Double Jeopardy Clause sits in the Fifth Amendment, and the Bill of Rights by its own terms restrains only the federal government. A guarantee with that limited address would protect a person only against federal prosecutors, who bring a small share of the nation's criminal cases, and would leave a defendant in a state courtroom without it. Once the first gate is passed and the proceeding is criminal, a state prosecution raises a second question: whether the Due Process Clause of the Fourteenth Amendment, which does restrain the States, carries this Fifth Amendment guarantee into state court.1 That question decided the outcome in Benton v. Maryland, where the Maryland Court of Appeals rejected a double jeopardy challenge to a second trial on the ground that the Clause was not applicable to the States, and the Supreme Court granted review to settle that applicability question.2 The trap is to treat a guarantee's place in the Bill of Rights as enough, because a Fifth Amendment guarantee binds a state only through the Fourteenth Amendment, so the answer depends on whether the Court has incorporated it.
The Court's answer to that question changed over time, and the history explains the modern rule. In the nineteenth century the Court read due process narrowly: in Hurtado v. California it refused to treat the grand jury requirement as part of due process, because the Fifth Amendment names the grand jury and due process as separate commands, and reading one to include the other would make part of the amendment superfluous.3 By 1908 the Court allowed in Twining v. New Jersey that some personal rights guarded against national action might also be guarded against the States, since a denial of them could be a denial of due process.4 That opening supplied a working test for the following decades, which asked whether a Bill of Rights guarantee is a fundamental safeguard of liberty, and under it the Court in Palko v. Connecticut declined to extend the Fifth Amendment's double jeopardy provision to the States.5 In the 1960s the Court moved to selective incorporation, holding one guarantee at a time that the Due Process Clause fully incorporates it, and it never adopted Justice Black's view that the Fourteenth Amendment applied the whole Bill of Rights at once.6 Benton then overruled Palko, and that is the step the later parts of this section develop.7
The process left nearly all of the criminal procedure guarantees incorporated, and the double jeopardy guarantee is among them. Of the Fifth Amendment's guarantees, only the grand jury requirement has been held inapplicable to the States, so two clauses of the same amendment sit on opposite sides of the line.8 Incorporation also settles how the Clause operates once it applies: incorporated guarantees are enforced against the States by the same standards that protect them against federal encroachment, so the content of the Clause does not change with the forum.9 Justice Harlan's dissents describe the same consequence from the critic's side, objecting that each absorbed guarantee reaches the States with all the refinements developed in federal adjudication.10 That consequence is why the attachment rules taught later in this chapter come from federal decisions yet govern state trials too.11 The sub-sections below follow the second gate in order: the Palko approach that once kept the Clause out of state courts, the decision in Benton that overruled it, and the consequence that federal and state courts now apply the same standards, beginning with Palko.
The Palko Approach
Palko v. Connecticut, decided in 1937, gave the incorporation question a negative answer that stood until Benton v. Maryland rejected the approach in 1969.13 The facts show how the question arose. A Connecticut jury convicted Palko of second-degree murder on an indictment for first-degree murder, and he was sentenced to life in prison.14 With the trial judge's permission, the State appealed under an 1886 statute that let it appeal in criminal cases. The Connecticut Supreme Court of Errors found legal errors that prejudiced the State: testimony about Palko's confession had been excluded, cross-examination offered to impeach his credibility had been excluded, and the instructions on the difference between first- and second-degree murder were wrong. It ordered a new trial.15 Palko objected, before the second jury was impaneled and at later stages, that a new trial put him twice in jeopardy in violation of the Fourteenth Amendment. The objection was overruled, the second jury convicted him of first-degree murder, and he was sentenced to death.16
Palko's argument was the incorporation argument in its simplest form. The Fifth Amendment is addressed solely to the federal government, while the Fourteenth Amendment forbids a State to deprive any person of life, liberty, or property without due process of law, so he reasoned that whatever the Fifth Amendment forbids the federal government to do, the Fourteenth forbids a State to do.17 On that reasoning, a retrial that would place a defendant twice in jeopardy in a federal prosecution would, in a state prosecution, deny life or liberty without due process.18 The Court did not stop to decide whether the premise described federal law correctly. It declined to mark the precise limits of the federal prohibition and assumed, for the case at hand, the view expressed in Kepner v. United States that the Fifth Amendment forbids a retrial in the same case when the government, and not the defendant, sought it.19 That assumption shapes how the decision should be read, because the outcome rested on the reach of the Fourteenth Amendment. Whether the Fifth Amendment itself would have barred the retrial in a federal court was assumed for argument's sake and never resolved.
The question reached the Court unsettled. A like argument in Dreyer v. Illinois had been passed over thirty-five years earlier as unnecessary to the decision, and in Shoener v. Pennsylvania the Court dismissed a writ of error without deciding whether the jeopardy clause restrains the States, because the record showed that the accused had not previously been put in legal jeopardy.20 The Shoener disposition previews the attachment question taught later in this chapter, since a double jeopardy claim has nothing to stand on until a first jeopardy exists. The competing views were also already on the table. Dissenting in Twining v. New Jersey, Justice Harlan treated the exemption from being put twice in jeopardy as one of the immunities the Fourteenth Amendment forbids a State to abridge, and he warned that the majority's reasoning would leave a State free to put an accused in jeopardy twice or oftener at the prosecution's pleasure.21
Against that background the Court rejected the wholesale version of Palko's thesis. His position, it observed, was even broader than a claim about double jeopardy, because it treated whatever would violate the first eight Amendments if the federal government did it as equally unlawful when a State did it, and the Court answered flatly: "There is no such general rule."22 It pointed to decisions allowing a State to proceed by information instead of grand jury indictment, allowing a State to end the privilege against self-incrimination, and allowing a State to modify or abolish jury trial.23 The logic behind the first of those decisions explains why a selective test was needed. In Hurtado v. California the Court observed that the Fifth Amendment names the grand jury requirement and the due process guarantee as separate commands, so due process was not meant to include grand jury procedure, and the same phrase in the Fourteenth Amendment carried the same limited sense.24 The dissent answered that the same reasoning would strip the double jeopardy and self-incrimination protections out of due process as well, since the Fifth Amendment lists those separately too.25
If the Fourteenth Amendment does not copy the Bill of Rights, something must select which guarantees it carries, and Palko supplied the selector. The ordered-liberty test asks whether a guarantee 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."26 Guarantees that qualified were, in Palko's words, "implicit in the concept of ordered liberty," and the Fourteenth Amendment made them binding on the States through "a process of absorption."27 The test was selective by design. By the time of Gideon v. Wainwright, the Court had absorbed the First Amendment freedoms, the just compensation command, the ban on unreasonable searches, and the ban on cruel and unusual punishment, while Palko itself had refused to absorb double jeopardy.28 Justice Black, who favored applying the whole Bill of Rights to the States, said that if the choice lay between Palko's selective process and the rule of Twining that applied none of the guarantees, he would choose Palko's.29
Applied to Connecticut's appeal statute, the test produced a negative answer for the reason Palko itself gave. Kepner had been decided in 1904 by a closely divided Court, and the dissents showed how much could be said for the opposite ruling, so right-minded people could reasonably, even if mistakenly, think a second trial lawful in the same case without favoring a practice "repugnant to the conscience of mankind."30 The reasoning runs in a chain. A principle fundamental to ordered liberty has to be one that fair-minded people could not reasonably reject. A federal rule on which the Court itself divided closely fails that description, because the division shows that rejecting the rule is a reasonable position. A State that departs from such a rule has therefore not fallen below the floor of fundamental fairness. The Court added a caution about labels, warning that the words "double jeopardy" must not carry a conclusion drawn in one setting into every other setting.31 On that basis the retrial, and the death sentence that followed it, did not deny Palko due process.32
Both rejected alternatives carried a cost, which explains why the Court settled on selection. A rule carrying every Bill of Rights guarantee to the States would force each state system to match federal procedure in detail, including procedures such as grand jury indictment that the Court had already let States replace. A rule carrying none would leave an accused in state court dependent on state law for even the most basic protections, the danger Justice Harlan's Twining dissent described for double jeopardy. Selection asked guarantee by guarantee whether fundamental fairness demanded the protection, and that premise made a state retrial after the State's own successful appeal look permissible. Critics of the later method of selective incorporation described the difference from their side: the due process approach examines each right on its own bottom, while incorporation carries a guarantee to the States with all the refinements built up in federal adjudication.33
The approach lost its supporting examples before it lost its holding. The Court later incorporated the privilege against self-incrimination in Malloy v. Hogan, overruling Twining, and incorporated the right to jury trial in Duncan v. Louisiana.34 The double jeopardy holding fell in Benton. The Maryland Court of Appeals had rejected Benton's double jeopardy challenge to a second trial on the ground that the Fifth Amendment Clause was not applicable to the States, which was the rule Palko had announced.35 The Supreme Court granted review, rejected the approach taken in Palko, and held the Clause applicable to the States.36 The next sub-section takes up how Benton reached that result.
On an exam, Palko appears as history. A stem that sets a state-court retrial and has the State argue that the Fifth Amendment Clause does not apply to it invites a rule that was valid in 1937 and has since been overruled. The error to avoid is treating Palko as current law, because after Benton the Clause binds the State, and the live questions become whether the proceeding is criminal, whether jeopardy has attached, and which protection the second proceeding engages.37
Benton Overrules Palko
Benton v. Maryland gave the incorporation question the answer that Palko v. Connecticut had withheld for more than three decades. Benton was tried in a Maryland circuit court on charges of larceny and burglary, and the jury acquitted him of larceny but convicted him of burglary.39 Both his grand jury and his trial jury had been chosen under a state constitutional provision that required jurors to swear a belief in God, and the Maryland Court of Appeals struck that provision down while his appeal was pending, so he was offered re-indictment and a new trial and took it.40 The State charged him again with larceny and burglary, and the second jury convicted him on both counts.41 Benton argued that a second trial on those charges placed him in jeopardy twice, and the Maryland Court of Appeals rejected the argument on a single ground: the Fifth Amendment Clause did not apply to the States.42 That ground was the Palko rule, and the Supreme Court granted review to decide whether the rule should stand.
The decision has three parts, and keeping them apart helps on an exam. The Court held that the Double Jeopardy Clause applies to the States through the Fourteenth Amendment, and it overruled Palko.43 It then applied the Clause to Benton's case and held that the first jury's acquittal on the larceny charge barred a second trial for that offense, so the larceny conviction had to be reversed.44 Finally, it reversed the burglary conviction as well, because the State had not shown that the unconstitutional method of selecting the jury left the verdict on that charge unaffected.45 The first part states the rule for every state prosecution, and the other two show that rule operating on one defendant's facts.
The Court reached the first part by showing what had happened to the foundations of Palko. After 1937 the Court had applied one guarantee after another to the States in a series of cases beginning with Mapp v. Ohio, and it described Duncan v. Louisiana, which applied the right to jury trial, as a rejection of the approach Palko took.46 Justice Harlan, who protested each of those steps, later traced the same sequence as a one-by-one absorption of Bill of Rights guarantees, running through Malloy, Pointer, Klopfer, and Duncan and ending with Benton, where Palko was overruled.47 The newer decisions had also changed the question. The governing standard became whether a guarantee is fundamental to the American scheme of ordered liberty and system of justice, and the older question whether any civilized system could be imagined without the protection was set aside.48 That change matters because Palko, as the preceding sub-section showed, had treated the close division of the Court in Kepner as a sign that a second trial in the same case could not be called fundamentally unfair. Under the newer standard, reasonable disagreement elsewhere is no longer the measure; the question is whether the guarantee belongs to the core of the American system.
Once the question was reset, the Court held that the same considerations that made jury trial fundamental required the same answer for double jeopardy, because the ban on repeated attempts to convict is a fundamental ideal in the nation's constitutional heritage.49 The harms the Court identified, drawing on Green v. United States, fall on the accused whenever a State with enormous resources may keep trying: the accused bears the humiliation, cost, and strain of each trial, lives with lasting insecurity, and faces a rising chance that a jury will eventually convict even an innocent person.50 The last of those harms is an incentive problem. If an acquittal did not end the matter, a prosecutor could treat the first trial as a rehearsal, learn which evidence and arguments failed, and try again until a jury agreed, so the Clause gives the prosecution one opportunity per offense.51 Nothing in that account depends on which government is prosecuting. A State has the same resources, the same temptation to treat a failed trial as practice, and the same capacity to wear down an accused, and because the States carry the principal responsibility for defining and prosecuting crimes, a bar that bound only federal prosecutors would leave most criminal defendants outside it.52
Applied to Benton's facts, the rule produced the larceny result. The first jury's verdict of not guilty on larceny ended the State's opportunity to convict him of that offense, and the second trial on larceny was a second attempt at the same charge, so the larceny conviction fell.53 The route to the second trial deserves attention. The new trial followed Benton's own appeal, and a defendant's successful appeal ordinarily leaves the State free to retry the charge on which the defendant was convicted.54 That ordinary rule explains why the burglary count could be tried again. The larceny count differed because the first jury had already acquitted, and the reversal shows that an acquittal stays protected even when the new trial comes about through the defendant's own appeal on another count.55
The decision was not unanimous. Justice Harlan dissented, joined by Justice Stewart, and Justice Stewart also wrote a separate dissent.56 Harlan's position kept faith with the premise of Palko, that the double jeopardy guarantee is not fundamental to the American scheme of justice. Stewart's separate argument was that a jury selected in an unconstitutional manner never placed Benton in jeopardy, so no first jeopardy existed for the second trial to repeat. The Court did not accept that argument, because it treated the first jury's acquittal on larceny as a bar even though that jury had been chosen under a provision that Maryland's own court later invalidated.57 The argument also has a practical weakness: it would let a State turn its own constitutional error in selecting jurors into a second chance to convict, which is the incentive problem the Clause exists to remove.
Incorporation answers one question, namely which governments the Clause binds. The Clause's other gates remain in place, and the first of them is that the proceeding be a criminal prosecution.58 A sanction that a legislature labels civil falls inside the Clause only on the clearest proof that it is actually punitive.59
Incorporation also leaves untouched the rule that two different sovereigns may each prosecute the same conduct, and a later reading takes up that separate-sovereigns rule.60
On an exam, a state-court stem that presents a first trial, a verdict, and a second trial invites a short sequence of steps, and Benton settles the first of them. The Clause binds the State, so no answer can rest on the argument that the Fifth Amendment reaches only federal prosecutors.61 The error to avoid is stopping there, because incorporation only makes the Clause applicable, and whether it bars the second proceeding still depends on whether that proceeding is criminal, whether jeopardy attached at the first trial, and which protection the second proceeding engages.62
Same Standards in State Courts
Incorporation settles more than which governments the Clause binds; it also settles what the Clause means once it binds them. An incorporated guarantee is enforced against the States under the Fourteenth Amendment "according to the same standards" that protect the same right against federal action, so a ruling on the meaning of the Clause carries equal force in both systems.64 The reason follows from the ground on which Benton applied the Clause to the States, namely that the bar on repeated attempts to convict is a fundamental ideal of the American system.65 A protection cannot be fundamental to that system and yet reach state defendants only in a thinned-out form. The Court accordingly abandoned the idea that the Fourteenth Amendment carries only a "watered down" version of the Bill of Rights to the States, and it treated as incongruous any rule that gives a claim different strength depending on whether it is raised in a state or a federal court.66
Crist v. Bretz shows the principle at work. The Ninth Circuit had held that Montana must treat jeopardy as attaching when a jury is empaneled and sworn, and Montana sought review of that holding.67 The Supreme Court recast the dispute around a single question. Because Benton requires "the same constitutional standards" in state and federal courts, the federal attachment rule binds Montana if it is an integral part of the constitutional guarantee, and whether Montana would prefer a different rule drops out of the analysis.68 The attachment rule itself belongs to a later part of this chapter, but the structure of the argument belongs here: the question asked is what the guarantee contains, and the identity of the forum does not change the answer.
That framing sorts every earlier federal ruling into one of two kinds. A rule that is part of the guarantee itself binds state and federal courts alike, while a rule that was only a convenience of federal practice binds neither once the Court reconsiders it. The majority in Duncan v. Louisiana was not receptive to a separate opinion's suggestion that States should receive only the basic elements of a guarantee and not the federal system of administration around it, and it said the proper course is to reconsider the constitutional footing of the federal rule, a reconsideration that can end either way.69 Reconsidered, the twelve-person jury rule was found not to be a constitutional command in Williams v. Florida, while the rule that jeopardy attaches when the jury is sworn was found to be one in Crist, so the second applies to the States as part of the incorporated Clause.70 Duncan itself applied the jury guarantee to Louisiana in every criminal case that would fall within the Sixth Amendment if tried in federal court.71 The one recognized exception to identical application, the holding that the Sixth Amendment requires unanimous jury verdicts in federal but not state trials, came from an unusual division among the Justices and, as the Court has explained, does not reflect a two-track approach to incorporation.72
A second consequence concerns time. In Ashe v. Swenson, six men were robbed at gunpoint while playing poker, and Ashe was first tried for robbing one of them, Knight, and acquitted.73 Six weeks later Missouri tried him for robbing another player, Roberts, with largely the same witnesses, and that jury convicted him.74 Both trials took place in 1960, and Benton was decided in 1969.75 The Court nonetheless held that the second prosecution violated the Clause as enforced against the States, and it stated that the doctrine of Benton is applied retroactively.76 Justice Brennan's concurrence adds that North Carolina v. Pearce, decided the same day as Benton, gave that holding fully retroactive effect.77 The Court reached its result in Ashe through collateral estoppel, which it treated as embodied in the Clause and which a later reading takes up.78 Retroactivity can be read off the interest the Clause protects. A defendant put through a second trial in 1960 bears the same ordeal, expense, and anxiety as one put through it in 1970, so the date of the first trial does not change the harm the Clause exists to prevent.
The same logic carries the federal meaning of "same offence" into state prosecutions, and a comparison with Hoag v. New Jersey shows what changed. Three armed men robbed five customers in a tavern, and Hoag was acquitted on indictments naming three of the customers and then convicted on a fourth indictment naming another.79 New Jersey treated each robbery as a separate offense, and the Court in Hoag, which predated Benton, declined to hold that due process always bars a State from prosecuting separately the different offenses arising from one act, pointing to the "widest latitude" the States enjoy in administering criminal justice.80 Justice Brennan observed that the basic facts of Hoag and Ashe were identical, so the difference between them lies in Benton rather than in the robberies.81 Once the Clause binds the States and does so retroactively, he reasoned, federal standards of what constitutes the same offence apply alike in state and federal proceedings, and different standards depending on the forum would be incongruous.82 On that footing he would have barred prosecuting each robbery at a separate trial because the robberies grew out of one episode, a position the Court's opinion did not need to adopt.83
State courts keep final authority to define the elements of state crimes, and the federal standard supplies the measure of whether two crimes so defined are the same. In Brown v. Ohio the Ohio Court of Appeals had defined joyriding as taking or operating a vehicle without the owner's consent and auto theft as joyriding with intent permanently to deprive the owner of possession.84 The Supreme Court applied the Blockburger test, which asks whether each offense requires proof of a fact the other does not, and held the two the same offence because the lesser offense requires nothing beyond what the greater requires.85 Whichever prosecution came first, the Fifth Amendment forbids successive prosecution for a greater and a lesser included offense, so the second Ohio prosecution could not stand.86
On an exam, a state-court stem may stress that the State has always treated separate victims or separate labels as separate offenses, or that the first trial predates 1969. Neither point alters the analysis, because the Clause binds the State by the same standards that govern a federal prosecution, the federal test decides whether two charges are the same offence, and the date of the first trial does not matter.87 Answers go wrong when they let state latitude carry the result after Benton, since that latitude was what Hoag relied on and it no longer exists.