The End of Nonunanimous Verdicts and the Persistence of Precedent

In a criminal case in England in 1367, one of the twelve jurors said he’d rather die in prison than vote to convict. As a result, the judge in the case refused to accept an 11-to-1 guilty verdict, and the principle of unanimity was born. It became a vital right of criminal defendants that was protected by the common law.

By the time James Madison drafted and the states ratified the Sixth Amendment to the Constitution in 1791, which guaranteed the right of criminal defendants to a “trial by an impartial jury,” the principle of unanimity was already honored in practice throughout the country. While the Sixth Amendment does not explicitly command that a verdict be unanimous, the text and structure of the Constitution suggest that the phrase “trial by an impartial jury” includes within it certain requirements, one of which is unanimity.

The Supreme Court has over the years repeatedly recognized that jury unanimity is a requirement in United States courts. In a confusing set of opinions in a 1972 case, Apodaca v. Oregon [1], a divided Court ruled that the Sixth Amendment right to unanimity does not apply in state courts. Still, 48 states extend that right to defendants. The two outliers are Louisiana and Oregon.

Louisiana held a constitutional convention in 1890. After the participants learned that black voters made up 15 per cent of the electorate in the state, they adopted a provision that permitted a criminal conviction even if three jurors, the likely maximum number of blacks on a jury, dissented[2]. The goal of the constitution was to render the votes of black jurors meaningless through a mechanism that seemed neutral on its face.

In Oregon, anti-Semitism was the impetus for the abandonment of unanimity. In 1933, a Jewish hotel owner was charged with the gangland-style murder of two white Protestants and ultimately found guilty of manslaughter instead of first-degree murder after a sensationalized trial. Newspaper editorials and calls for action by the Ku Klux Klan followed. The remedy, they suggested, to cope with the influx of immigrants from Eastern and Southern Europe was nonunanimous juries. A referendum followed in which the voters approved a constitutional amendment permitting a conviction based on the vote of ten of twelve jurors in all but first-degree murder cases.

Studies have shown that juries required to render a unanimous verdict conduct more open-minded and thorough deliberations. Hence, their verdicts are more reliable. As for Louisiana, it has the highest incarceration rate in the country and the highest rate of wrongful convictions. Louisiana has also abolished parole for those serving life sentences.

A Louisiana criminal defendant, Evangelista Ramos, was convicted in 2016 of second-degree murder by ten of the twelve jurors and received a life sentence with no chance of parole. After refusing to review convictions by nonunanimous juries over the years, the Supreme Court agreed to take his case.

Against the backdrop of its numerous pronouncements over decades that the Sixth Amendment requires that criminal defendants not be convicted without a unanimous jury, a six hundred-year common law tradition and constitutional provisions in Louisiana and Oregon rooted in racism and ethnic hatred, the Supreme Court, by a six to three vote in Ramos v. Louisiana [3], with very little discussion about what appeared to be the important issue projected by the case—whether the Amendment requires jury unanimity in both state and federal courts—overturned Ramos’s conviction on Sixth Amendment grounds.

The dissenting opinion did not even suggest that the majority was wrong on the merits of the case. So, what was their problem?

What the justices did discuss at great length, in five separate opinions, was whether the doctrine of stare decisis required that the Court uphold the Louisiana verdict. The real debate was not about what the Sixth Amendment means. It was about whether Apodaca v. Oregon, which all nine members of the Court seemed to agree was wrongly decided, should remain the law. In fact, that was the only thing the dissenting justices, who were untroubled by the transparently racist origins of split verdicts in Louisiana and Oregon, focused on.

Stare decisis is legal doctrine that obliges courts to follow precedents set by previous decisions in similar cases by higher courts. Since the Supreme Court is the highest court, it has the luxury of discarding those precedents when it sees fit, perhaps to allow for the natural evolution of the law, perhaps for other reasons.

In four of the five opinions, the justices in Ramos offered their views, some at great length, on when precedent established by the Court should be respected and when it shouldn’t. Even some of the justices who joined Justice Gorsuch’s majority opinion believed him too dismissive of precedent. At times, the arguments got a bit heated. All of which gives you the sense that this bickering was not entirely about whether Ramos’s conviction should be upheld, that it is merely the undercard for the title fight about stare decisis: what the Court will do when it next considers its abortion precedents.

It’s no secret that conservatives in general and right-leaning judges in particular don’t think the Constitution gives women the right to have an abortion. The only thing standing in the way of the Supreme Court’s overturning Roe v. Wade may be its respect for a long-standing precedent.

[1] 406 U.S. 404 (1972).

[2] At another constitutional convention in 1973, Louisiana amended its constitution to require that ten jurors agree on conviction, and, in 2019, abolished split verdicts altogether, but only prospectively.

[3] 590 U.S. ___ (2020).