July 24, 2020

U.S. Supreme Court Mandates Juror Unanimity in State Criminal Trials

In response to Ramos v. Louisiana, all verdicts in state criminal trials will now require unanimous juries.

In response to Ramos v. Louisiana, all verdicts in state criminal trials will now require unanimous juries.

© User: Ammodramus / Creative Commons / CC0 1.0

On April 20, 2020, in a fractured opinion in Ramos v. Louisiana, the U.S. Supreme Court held that the Constitution requires unanimous jury verdicts in state criminal trials. The decision reversed a Louisiana appellate court decision upholding the conviction of Evangelisto Ramos, who was convicted by a 10-2 jury verdict in Louisiana. Mr. Ramos argued that his non-unanimous conviction violated his Sixth Amendment right to a “trial by an impartial jury.” Siding with Mr. Ramos, the Court found that the Sixth Amendment’s unanimous jury requirement is fully incorporated against the states. Incorporation is the legal doctrine the U.S. Supreme Court has employed to make certain rights guaranteed by the U.S. Constitution applicable to the states through the Due Process clause of the Fourteenth Amendment. While unanimous jury verdicts were already a requirement of federal criminal proceedings, until Ramos non-unanimous verdicts were permitted in state criminal trials. Until recently, only Louisiana and Oregon permitted non-unanimous juries to convict a defendant. At the time of the decision, Oregon still allowed non-unanimous jury verdicts in criminal cases, and while Louisiana amended its constitution in 2018 to require unanimous jury verdicts for crimes committed on or after January 1, 2019, the amendment did not apply retroactively.

The Court centered its decision on the 1972 opinion Apodaca v. Oregon, which upheld the constitutionality of non-unanimous criminal convictions in state court. In Apodaca, four justices found the unanimity requirement applied to the states through the Fourteenth Amendment, another set of four justices found that the Sixth Amendment imposes no unanimity requirement at all, and a single justice, Justice Powell, found that the unanimity requirement of the Sixth Amendment applies only to federal criminal trials. Justice Powell’s conclusion relied on the theory of “dual-track incorporation”—the idea that a constitutional right can have two different meanings depending on whether it is being invoked against the federal or state government.

In Ramos, Justice Gorsuch authored the principle opinion, joined in full by Justices Ginsburg and Breyer and in part by Justices Sotomayor and Kavanaugh, holding that juror unanimity is required for state felony convictions. Justice Gorsuch traced the origins of juror unanimity, explaining that it “emerged as a vital common law right in 14th century England, appeared in the early American state constitutions, and provided the backdrop against which the Sixth Amendment was drafted and ratified.” Justice Thomas wrote separately, concurring in the judgment. Justice Thomas argued that the right to juror unanimity applies to states through the Comity Clause of the Fourteenth Amendment, rather than through the Due Process Clause. Justice Thomas has long indicated that he thinks the Court’s history of incorporating rights against the states through the Due Process Clause is erroneous, including in McDonald v. Chicago and Timbs v. Indiana. The dissent, authored by Justice Alito and joined in full by Chief Justice Roberts and in part by Justice Kagan, would have upheld non-unanimous verdicts.

The Court then splintered on how to apply the doctrine of stare decisis—the legal principle that courts should follow precedent set in prior, factually similar, decisions. Whether Justice Powell’s reasoning served as the holding in Apodaca, creating controlling precedent, was one point of division. Justices Gorsuch, Ginsburg, and Breyer found that the Sixth Amendment’s juror unanimity requirement “applies to state and federal criminal trials equally,” arguing that Justice Powell’s concurrence lacked precedential force, and that prior to Apodaca, the Court had already rejected the theory of dual-track incorporation. The three justices rejected the notion “that a single Justice writing only for himself has the authority to bind this Court to already rejected propositions.”

In separate concurrences, Justices Sotomayor and Kavanaugh indicated that while they did believe Apodaca was binding precedent, it should still be overruled. Justice Sotomayor’s concurrence, while highlighting the importance of precedent, explained that the force of stare decisis is at its lowest “in cases concerning criminal procedure rules that implicate fundamental constitutional protections.” In his concurrence, Justice Kavanaugh set out his own test for determining when to overrule a prior constitutional decision, drawing a distinction between constitutional and statutory cases. According to Justice Kavanaugh, the doctrine of stare decisis applies more flexibly to the former than the latter, as the legislature can amend or repeal a statute if necessary, but only the Court or an unlikely constitutional amendment can alter a prior constitutional interpretation.

Despite different lines of reasoning, the majority opinion and the concurrences all agreed that Apodaca should be overturned. Justices Gorsuch, Sotomayor, and Kavanaugh each asserted that the Louisiana and Oregon laws were Jim Crow-era enactments rooted in racism, meant to undermine minority participation in the judicial process. Additionally, the justices explained that insufficient state reliance interests and the fact that Apodaca is an outlier in the Court’s jurisprudence were further justifications for overruling the decision.

The dissent criticized the majority’s treatment of stare decisis, characterizing the majority opinion as “cast[ing] aside an important and long-established decision with little regard for the enormous reliance the decision has engendered.” The dissent emphasized that overruling Apodaca was inappropriate regardless of “whatever one may think about the correctness of the decision.” Justice Alito also criticized the portion of Justice Gorsuch’s opinion that suggested Apodaca lacked precedential force, referencing the Court’s 1977 decision in Marks v. United States, which provides a rule for determining the holding in decisions without a majority opinion. The dissent also spoke out against the majority’s emphasis on the racist origins of the non-unanimity rules, writing “the origins of the Louisiana and Oregon rules have no bearing on the broad constitutional question that the Court decides.”

As a result of the decision in Ramos, Oregon must amend its existing criminal procedure. The Court’s decision could also pave the way for hundreds of other defendants convicted by non-unanimous juries to obtain new trials in Louisiana and Oregon, if it is found to apply retroactively on collateral review. On May 4, 2020, the U.S. Supreme Court granted certiorari in Edwards v. Vannoy limited to the issue of whether Ramos applies retroactively to cases on federal collateral review. While that case remains pending, the Louisiana Supreme Court on June 3 declined to consider whether Ramos should apply retroactively to cases on state collateral review, voting 4-3 to deny a supervisory writ to petitioner Willie Gipson. In her opinion dissenting from the writ denial, Chief Justice Bernette J. Johnson argued that Ramos should apply retroactively at the state level, regardless of the Supreme Court’s Edwards decision. Chief Justice Johnson noted the “historic injustices done to Louisiana’s African American citizens by the use of the non-unanimous jury rule,” and would have held that, whether under the U.S. Supreme Court’s Teague v. Lane retroactivity test or another standard, the end of non-unanimous juries marks a sufficiently significant change to require retroactive application.

The justices’ varying approaches to stare decisis in Ramos may also provide a preview of arguments that will likely arise in future U.S. Supreme Court cases on other issues.