Shock-the-Conscience Test

A determination of whether a state agent's actions fall outside the standards of civilized decency.

The U.S. Supreme Court established the "shock-the-conscience test" in ROCHIN V. CALIFORNIA, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952). Based on the Fourteenth Amendment's prohibition against states depriving any person of "life, liberty, or property without due process of law," the test prohibits conduct by state agents that falls outside the standards of civilized decency. Little used since the 1960s, the test has been criticized for permitting judges to assert their subjective views on what constitutes "shocking."

The Rochin decision was made during an era when the Supreme Court still adhered to the precedent that the BILL OF RIGHTS applied only to actions by the federal government. Thus, all the rights afforded federal criminal defendants in the Fourth, Fifth, and Sixth amendments were not available to state criminal defendants. This reading made the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT difficult to apply to state actions.

The Supreme Court, in Twining v. New Jersey, 211 U.S. 78, 29 S. Ct. 14, 53 L. Ed. 97 (1908), concluded that some of the rights contained in the Bill of Rights "are of such a nature that they are included [with]in the conception of due process of law" and are applicable to the states. But succeeding generations of justices had difficulty defining a test that would reveal which rights were important enough to apply to state and local government. In 1937 the Court considered whether a right was "of the very essence of a scheme of ordered liberty" or "implicit in the concept of ordered liberty" (Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288). Only those rights that were found "fundamental" or "implicit in the concept of ordered liberty" were made applicable to prevent STATE ACTION.

In Rochin three state law enforcement officers, acting on information that Antonio Rochin was selling narcotics, illegally entered Rochin's room. When the officers noticed two capsules on a bedside table, Rochin grabbed the capsules and put them in his mouth. The three officers then wrestled with Rochin and sought to open his mouth so they could extract the pills. When this failed, the officers handcuffed Rochin and took him to a hospital, where at their direction a doctor forced an emetic solution through a tube into Rochin's stomach. The solution induced vomiting, and in the vomited matter the deputies found two morphine capsules. Rochin was convicted of narcotics possession. The conviction was based solely on the morphine capsules, which Rochin had vainly sought to have suppressed as evidence.

Justice FELIX FRANKFURTER, writing for the Court, held that such conduct by state agents, although not specifically prohibited by explicit language in the Constitution, "shocks the conscience" in that it offends "those canons of decency and fairness which express the notions of justice of English-speaking peoples." Due process of law requires the state to observe those principles that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental."

The Court reasoned that to permit the use of such capsules as evidence under the circumstances would "afford brutality the cloak of law." The officers' conduct "shocks the conscience," offending even those with "hardened sensibilities. They are methods too close to the rack and screw to permit of constitutional differentiation." Therefore, the Court reversed Rochin's conviction because the stomach pumping violated the Due Process Clause.

Since Rochin, the Supreme Court has made most of the rights enumerated in the first eight amendments also applicable to state action by selectively incorporating them, one by one, into the scope of the Fourteenth Amendment's Due Process Clause. Justices HUGO L. BLACK and WILLIAM O. DOUGLAS, who, in their concurring opinions in Rochin, had argued for incorporation of the FOURTH AMENDMENT, were instrumental in diminishing the importance of the shock-the-conscience test. They believed that the test was too general and that its vagueness allowed judges to apply their subjective judgment as to what was shocking and what offended the Due Process Clause.

Nevertheless, Rochin remains important because it stands for the proposition that the Due Process Clause provides a protection for persons separate from, and independent of, the Bill of Rights provisions that have now been applied to the states.