Benton v. Maryland

No. 201 Argued: December 12, 1968 --- Decided: June 23, 1969
MR. JUSTICE MARSHALL delivered the opinion of the Court.

In August, 1965, petitioner was tried in a Maryland state court on charges of burglary and larceny. The jury found petitioner not guilty of larceny, but convicted him on the burglary count. He was sentenced to 10 years in prison. Shortly after his notice of appeal was filed in the Maryland Court of Appeals, that court handed down its decision in the case of Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965). In Schowgurow, the Maryland Court of Appeals struck down a section of the state constitution which required jurors to swear their belief in the existence of God. As a result of this decision, petitioner's case was remanded to the trial court. [p786] Because both the grand and petit juries in petitioner's case had been selected under the invalid constitutional provision, petitioner was given the option of demanding reindictment and retrial. He chose to have his conviction set aside, and a new indictment and new trial followed. At this second trial, petitioner was again charged with both larceny and burglary. Petitioner objected to retrial on the larceny count, arguing that, because the first jury had found him not guilty of larceny, retrial would violate the constitutional prohibition against subjecting persons to double jeopardy for the same offense. The trial judge denied petitioner's motion to dismiss the larceny charge, and petitioner was tried for both larceny and burglary. This time the jury found petitioner guilty of both offenses, and the judge sentenced him to 15 years on the burglary count [n1] and 5 years for larceny, the sentences to run concurrently. On appeal to the newly created Maryland Court of Special Appeals, petitioner's double jeopardy claim was rejected on the merits. 1 Md.App. 647, 232 A.2d. 541 (1967). The Court of Appeals denied discretionary review.

On the last day of last Term, we granted certiorari, 392 U.S. 925 (1968), but limited the writ to the consideration of two issues:

(1) Is the double jeopardy clause of the Fifth Amendment applicable to the States through the Fourteenth Amendment?

(2) If so, was the petitioner "twice put in jeopardy" in this case? [p787]

After oral argument, it became clear that the existence of a concurrent sentence on the burglary count might prevent the Court from reaching the double jeopardy issue, at least if we found that any error affected only petitioner's larceny conviction. Therefore, we scheduled the case for reargument, 393 U.S. 994 (1968), limited to the following additional question not included in the original writ:

Does the "concurrent sentence doctrine," enunciated in Hirabayashi v. United States, 320 U.S. 81, 105, and subsequent cases, have continuing validity in light of such decisions as Ginsberg v. New York, 390 U.S. 629, 633, n. 2, Peyton v. Rowe, 391 U.S. 54, Carafass v. LaVallee, 391 U.S. 234, 237-238, and Sibron v. New York, 392 U.S. 40, 50-58?

The Solicitor General was invited to file a brief expressing the views of the United States and to participate in oral argument.

After consideration of all the questions before us, we find no bar to our decision of the double jeopardy issue. On the merits, we hold that the Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment, and we reverse petitioner's conviction for larceny.


At the outset of this case, we are confronted with a jurisdictional problem. If the error specified in the original writ of certiorari were found to affect only petitioner's larceny conviction, [n2] reversal of that conviction would not require the State to change the terms of [p788] petitioner's confinement. Whatever the status of his sentence on the larceny conviction, petitioner would probably stay in prison until he had served out his sentence for burglary. [n3] Is there, in these circumstances, a live "case" or "controversy" suitable for resolution by this Court, or is the issue moot? Is petitioner asking for an advisory opinion on an abstract or hypothetical question? The answer to these questions is crucial, for it is well settled that federal courts may act only in the context of a justiciable case or controversy. Muskrat v. United States, 219 U.S. 346 (1911); see Flast v. Cohen, 392 U.S. 83, 94-97 (1968).

The language used in a number of this Court's opinions might be read to indicate that the existence of a valid concurrent sentence removes the necessary elements of a justiciable controversy. The "concurrent sentence doctrine" took root in this country quite early, although its earliest manifestations occurred in slightly different contexts. In Locke v. United States, 7 Cranch 339 (1813), a cargo belonging to the plaintiff in error had been condemned under a libel containing 11 counts. Chief Justice John Marshall speaking for the Court, found it unnecessary to consider Locke's challenges to all 11 counts. He declared, simply enough, "The Court however, is of opinion, that the 4th count is good, and this renders it unnecessary to decide on the others." Id. at 344. Similar reasoning was later applied in a case where a single general sentence rested on convictions under several counts of an indictment. Drawing upon some English cases and some dicta from Lord Mansfield, [n4] the Court in Claassen v. United States, 142 U.S. 140, 146 [p789] (1891), held that, if the defendant had validly been convicted on any one count "the other counts need not be considered." The most widely cited application of this approach to cases where concurrent sentences, rather than a single general sentence, have been imposed is Hirabayashi v. United States, 320 U.S. 81 (1943). In that case, the defendant had been found guilty of two different offenses and had received concurrent three-month sentences. He challenged the constitutionality of both convictions, but this Court affirmed the lower court's judgment after considering and rejecting only one of his challenges. Since the conviction on the second count was valid, the Court found it "unnecessary" to consider the challenge to the first count. Id. at 85, 105.

The concurrent sentence doctrine has been widely, if somewhat haphazardly, applied in this Court's decisions. At times, the Court has seemed to say that the doctrine raises a jurisdictional bar to the consideration of counts under concurrent sentences. Some opinions have baldly declared that judgments of conviction "must be upheld" if any one count was good. Barenblatt v. United States, 360 U.S. 109, 115 (1959); see United States v. Gainey, 380 U.S. 63, 65 (1965). In other cases, the Court has chosen somewhat weaker language, indicating only that a judgment "may be affirmed if the conviction on either count is valid." Roviaro v. United States, 353 U.S. 53, 59, n. 6 (1957). And on at least one occasion, the Court has ignored the rule entirely and decided an issue that affected only one count, even though there were concurrent sentences. Putnam v. United States, 162 U.S. 687 (1896).

One can search through these cases, and related ones, without finding any satisfactory explanation for the concurrent sentence doctrine. See United States v. Hines, 256 F.2d 561, 562-563 (C.A.2d Cir.1958). But whatever the underlying justifications for the doctrine, [p790] it seems clear to us that it cannot be taken to state a jurisdictional rule. See Yates v. United States, 355 U.S. 66, 75-76 (1957); Putnam e. United States, supra. Moreover, whatever may have been the approach in the past, our recent decisions on the question of mootness in criminal cases make it perfectly clear that the existence of concurrent sentences does not remove the elements necessary to create a justiciable case or controversy.

In Sibron v. New York, 392 U.S. 40 (1968), we held that a criminal case did not become moot upon the expiration of the sentence imposed. We noted "the obvious fact of life that most criminal convictions do, in fact, entail adverse collateral legal consequences." Id. at 55. We concluded that the mere possibility of such collateral consequences was enough to give the case the "impact of actuality" which was necessary to make it a justiciable case or controversy. Sibron and a number of other recent cases have canvassed the possible adverse collateral effects of criminal convictions, [n5] and we need not repeat that analysis here. It is enough to say that there are such possibilities in this case. For example, there are a few States which consider all prior felony convictions for the purpose of enhancing sentence under habitual criminal statutes, even if the convictions actually constituted only separate counts in a single indictment tried on the same day. [n6] Petitioner might some day, in one of these States, have both his larceny and burglary convictions counted against him. Although this possibility [p791] may well be a remote one, it is enough to give this case an adversary cast and make it justiciable. Moreover, as in Sibron, both of petitioner's convictions might someday be used to impeach his character if put in issue at a future trial. Although petitioner could explain that both convictions arose out of the same transaction, a jury might not be able to appreciate this subtlety.

We cannot, therefore, say that this Court lacks jurisdiction to decide petitioner's challenge to his larceny conviction. It may be that, in certain circumstances, a federal appellate court, as a matter of discretion, might decide (as in Hirabayashi) that it is "unnecessary" to consider all the allegations made by a particular party. [n7] The concurrent sentence rule may have some continuing validity as a rule of judicial convenience. That is not a subject we must canvass today, however. It is sufficient for present purposes to hold that there is no jurisdictional bar to consideration of challenges to multiple convictions, even though concurrent sentences were imposed.


While Maryland apparently agrees that there is no jurisdictional bar to consideration of petitioner's larceny conviction, it argues that the possibility of collateral consequences is so remote in this case that any double jeopardy violation should be treated as a species of "harmless error." The Solicitor General, while not commenting at length on the facts of this particular case, [p792] suggests that we treat the concurrent sentence doctrine as a principle of judicial efficiency which permits judges to avoid decision of issues which have no appreciable impact on the rights of any party. Both Maryland and the Solicitor General argue that the defendant should bear the burden of convincing the appellate court of the need to review all his concurrent sentences. Petitioner, on the other hand, sees in Sibron a command that federal appellate courts treat all errors which may possibly affect a defendant's rights, and he argues that the concurrent sentence rule therefore has no continuing validity, even as a rule of convenience.

Because of the special circumstances in this case, we find it unnecessary to resolve this dispute. For even if the concurrent sentence doctrine survives as a rule of judicial convenience, we find good reason not to apply it here. On direct appeal from petitioner's conviction, the Maryland Court of Special Appeals did, in fact, rule on his double jeopardy challenge to the larceny count. 1 Md.App. at 650-651, 232 A.2d at 542-543. It is unclear whether Maryland courts always consider all challenges raised on direct appeal, notwithstanding the existence of concurrent sentences, [n8] but, at least in this case, the State decided not to apply the concurrent sentence rule. This may well indicate that the State has some interest in keeping the larceny conviction alive; [n9] if, as Maryland argues here, the larceny conviction is of no importance to either party, one wonders why the state courts found it necessary to pass on it. Since the future importance of the conviction may well turn on issues of state law about which we are not well informed, we propose, on direct appeal from the Maryland courts, to accept their judgment on this question. Since [p793] they decided this federal constitutional question, we see no reason why we should not do so as well. Moreover, the status of petitioner's burglary conviction and the eventual length of his sentence are both still in some doubt. [n10] Should any attack on the burglary conviction be successful, or should the length of the burglary sentence be reduced to less than five years, petitioner would then clearly have a right to have his larceny conviction reviewed. As we said in Sibron v. New York, supra, at 557, it is certainly preferable to have that review now on direct appeal, rather than later. [n11] For these reasons, and because there is no jurisdictional bar, we find it appropriate to reach the questions specified in our original writ of certiorari.


In 1937, this Court decided the landmark case of Palko v. Connecticut, 302 U.S. 319. Palko, although indicted for first-degree murder, had been convicted of murder in the second degree after a jury trial in a Connecticut state court. The State appealed and won a new trial. Palko argued that the Fourteenth Amendment incorporated, as against the States, the Fifth Amendment requirement that no person "be subject for the same offence to be twice put in jeopardy of life or limb." The Court disagreed. Federal double jeopardy standards were not applicable against the States. Only when a kind of jeopardy subjected a defendant to "a hardship so acute and shocking that our polity will not endure it," id. at 328, did the Fourteenth Amendment apply. The order [p794] for a new trial was affirmed. In subsequent appeals from state courts, the Court continued to apply this lesser Palko standard. See, e.g., Brock v. North Carolina, 344 U.S. 424 (1953).

Recently, however, this Court has

increasingly looked to the specific guarantees of the [Bill of Rights] to determine whether a state criminal trial was conducted with due process of law.

Washington v. Texas, 388 U.S. 14, 18 (1967). In an increasing number of cases, the Court

has rejected the notion that the Fourteenth Amendment applies to the States only a "watered-down, subjective version of the individual guarantees of the Bill of Rights. . . ."

Malloy v. Hogan, 378 U.S. 1, 10-11 (1964). [n12] Only last Term, we found that the right to trial by jury in criminal cases was "fundamental to the American scheme of justice," Duncan v. Louisiana, 391 U.S. 145, 149 (1968), and held that the Sixth Amendment right to a jury trial was applicable to the States through the Fourteenth Amendment. [n13] For the same reasons, we today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment. Insofar as it is inconsistent with this holding, Palko v. Connecticut is overruled.

Palko represented an approach to basic constitutional rights which this Court's recent decisions have rejected. It was cut of the same cloth as Betts v. Brady, 316 U.S. 455 (1942), the case which held that a criminal defendant's right to counsel was to be determined by deciding in each case whether the denial of that right was "shocking to the universal sense of justice." Id. at 462. It [p795] relied upon Twining v. New Jersey, 211 U.S. 78 (1908), which held that the right against compulsory self-incrimination was not an element of Fourteenth Amendment due process. Betts was overruled by Gideon v. Wainwright, 372 U.S. 335 (1963); Twining, by Malloy v. Hogan, 378 U.S. 1 (1964). Our recent cases have thoroughly rejected the Palko notion that basic constitutional rights can be denied by the States as long as the totality of the circumstances does not disclose a denial of "fundamental fairness." Once it is decided that a particular Bill of Rights guarantee is "fundamental to the American scheme of justice," Duncan v. Louisiana, supra, at 149, the same constitutional standards apply against both the State and Federal Governments. Palko's roots had thus been cut away years ago. We today only recognize the inevitable.

The fundamental nature of the guarantee against double jeopardy can hardly be doubted. Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation's independence. [n14] See Bartkus v. Illinois, 359 U.S. 121, 151-155 (1959) (BLACK, J., dissenting). As with many other elements of the common law, it was carried into the jurisprudence of this Country through the medium of Blackstone, who codified the doctrine in his Commentaries. "[T]he plea of autrefois acquit, or a former acquittal," he wrote,

is grounded on this universal maxim of the common law of England that no man is to be brought into jeopardy of his life more than once for the same offence. [n15]

Today, every State incorporates some form of the prohibition in its constitution or common law. [n16] As this Court put it in Green v. United States, 355 U.S. 184, 187-188 (1957),

[t]he underlying [p796] idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent he may be found guilty.

This underlying notion has, from the very beginning, been part of our constitutional tradition. Like the right to trial by jury, it is clearly "fundamental to the American scheme of justice." The validity of petitioner's larceny conviction must be judged not by the watered-down standard enunciated in Palko, but under this Court's interpretations of the Fifth Amendment double jeopardy provision.


It is clear that petitioner's larceny conviction cannot stand once federal double jeopardy standards are applied. Petitioner was acquitted of larceny in his first trial. Because he decided to appeal his burglary conviction, he is forced to suffer retrial on the larceny count as well. As this Court held in Green v. United States, supra, at 193-194,

[c]onditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy.

Maryland argues that Green does not apply to this case because petitioner's original indictment was absolutely void. One cannot be placed in "jeopardy" by a void indictment, the State argues. This argument sounds a bit strange, however, since petitioner could quietly have served out his sentence under this "void" indictment had he not appealed his burglary conviction. Only by accepting the option of a new trial could the indictment [p797] be set aside; at worst, the indictment would seem only voidable at the defendant's option, not absolutely void. In any case, this argument was answered here over 70 years ago in United States v. Ball, 163 U.S. 662 (1896). In that case, Millard Fillmore Ball was indicted, together with two other men, for the murder of one William T. Box in the Indian Territory. He was acquitted, and his codefendants were convicted. They appealed, and won a reversal on the ground that the indictment erroneously failed to aver the time or place of Box's death. All three defendants were retried, and this time Ball was convicted. This Court sustained his double jeopardy claim notwithstanding the technical invalidity of the indictment upon which he was first tried. The Court refused to allow the Government to allege its own error to deprive the defendant of the benefit of an acquittal by a jury. Id. at 667-668.

[A]lthough the indictment was fatally defective, yet, if the court had jurisdiction of the cause and of the party, its judgment is not void, but only voidable by writ of error. . . ,

and the Government could not have the acquittal set aside over the defendant's objections. Id. at 669-670. This case is totally indistinguishable. Petitioner was acquitted of larceny. He has, under Green, a valid double jeopardy plea which he cannot be forced to waive. Yet Maryland wants the earlier acquittal set aside, over petitioner's objections, because of a defect in the indictment. This it cannot do. Petitioner's larceny conviction cannot stand.


Petitioner argues that his burglary conviction should be set aside as well. He contends that some evidence, inadmissible under state law in a trial for burglary alone, was introduced in the joint trial for both burglary and larceny, and that the jury was prejudiced by this evidence. [n17] [p798] This question was not decided by the Maryland Court of Special Appeals, because it found no double jeopardy violation at all. It is not obvious on the face of the record that the burglary conviction was affected by the double jeopardy violation. To determine whether there is, in fact, any such evidentiary error, we would have to explore the Maryland law of evidence and the Maryland definitions of larceny and burglary, and then examine the record in detail. We do not think that this is the kind of determination we should make unaided by prior consideration by the state courts. [n18] Accordingly, we think it "just under the circumstances," 28 U.S.C. § 2106 to vacate the judgment below and remand for consideration of this question. The judgment is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It so ordered.

1. The increase in petitioner's sentence on the burglary count from 10 to 15 years is presently the subject of litigation on federal habeas corpus in the lower federal courts. A federal district court ordered the State to resentence petitioner, Benton v. Copinger, 291 F.Supp. 141 (D.C. Md.1968), and an appeal brought by the State is presently pending in the United States Court of Appeals for the Fourth Circuit.

2. See Part V, infra. Of course, if the error infected both counts upon which petitioner was convicted, there would be no concurrent sentence problem at all. We do not, however, resolve the question of whether the burglary conviction was "tainted."

3. The length of that sentence is presently a matter in dispute, see n. 1, supra.

4. Grant v. Astle, 2 Doug. 722, 99 Eng.Rep. 459 (1781); Peake v. Oldham, 1 Cowp. 275, 98 Eng.Rep. 1083 (1775); Rex v. Benfield, 2 Burr. 980, 97 Eng.Rep. 664 (1760).

5. Street v. New York, 394 U.S. 576, 579-580, n. 3 (1969); Carafass v. LaVallee, 391 U.S. 234, 237-238 (1968); Ginsberg v. New York, 390 U.S. 629, 633-634, n. 2 (1968).

6. The majority rule is, apparently, that all convictions handed down at the same time count as a single conviction for the purpose of habitual offender statute, but a few States follow the stricter rule described in the text. The relevant case are collected at 24 A.L.R.2d 1262-1267 (1952), and in the accompanying supplements.

7. In Sibron, we noted the inadequacies of a procedure which postpones appellate review until it is proposed to subject the convicted person to collateral consequences. 392 U.S. at 557. For the reasons there stated, an attempt to impose collateral consequences after an initial refusal to review a conviction on direct appeal because of the concurrent sentence doctrine may well raise some constitutional problems. That issue is not, however, presented by this case, and accordingly we express no opinion on it.

8. Compare Meade v. State, 198 Md. 489, 84 A.2d 892 (1951), with Marks v. State, 230 Md. 108, 185 A.2d 909 (1962).

9. See n. 7, supra.

10. See n. 1, supra, and Part V, infra.

11. A stronger case for total abolition of the concurrent sentence doctrine may well be made in cases on direct appeal, as compared to convictions attacked collaterally by suits for post-conviction relief. Because of our disposition of this case, we need not reach this question.

12. Quoting from Ohio ex rel. Eaton v. Price, 364 U.S. 263, 275 (1960) (opinion of BRENNAN, J.).

13. A list of those Bill of Rights guarantees which have been held "incorporated" in the Fourteenth Amendment can be found in Duncan, supra, at 148.

14. J. Sigler, Double Jeopardy 1-37 (1969).

15. 4 W. Blackstone, Commentaries *335.

16. Sigler, supra, n. 14, at 779; Brock v. North Carolina, 344 U.S. 424, 435, n. 6 (1953) (Vinson, C.J., dissenting).

17. There is no danger here that the jury might have been tempted to compromise on a lesser charge because of an erroneous retrial on a greater charge. See United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844, 866 (C.A.2d Cir.1965), cert. denied sub nom. Mancusi v. Hetenyi, 383 U.S. 913 (1966). Larceny is a lesser offense than burglary.

18. See Note, Individualized Criminal Justice in the Supreme Court: A Study of Dispositional Decision Making, 81 Harv.L.Rev. 1260, 1272-1273 (1968).