By Nancy Martinez & Murcel Rahimi
Louisiana and Oregon have been the only two states to allow non-unanimous verdicts, as a result of racially motivated legacies. On April 20, 2020, the US Supreme Court has finally found that non-unanimous verdicts are unconstitutional in accordance with the Sixth Amendment. Justice Neil Gorsuch wrote for the majority joined by Ginsburg, Breyer, Sotomayor, and Kavanaugh, with Justice Clarence Thomas delivering a concurring opinion, while Justice Samuel Alito provided a 25-page dissenting opinion joined by Chief Justice Roberts and Justice Kagan in part.
Evangelisto Ramos was convicted of murder in Louisiana with a 10-2 non-unanimous guilty verdict in 2016. Had his trial been in any other state other than Louisiana or Oregon, a mistrial would have been declared but, instead, Ramos was convicted to life in prison without the possibility of parole.
Historically, unanimous jury verdicts have been legally required in the criminal justice system of the United States since the adoption of the Sixth Amendment that upheld the right of individuals to a “speedy and public trial by an impartial jury.”
However, Jim Crow-driven legislation in Oregon and Louisiana that permitted 10-2 verdicts were adopted to “dilute ‘the influence of racial, ethnic, and religious minorities” and to ensure that African-American jury voices would be “meaningless.”
Though the courts of Louisiana and Oregon have acknowledged that race was a “motivating factor” in the permittance of non-unanimity verdicts, no court has contested the constitutionality of this.
In order to determine the constitutionality of non-unanimous verdicts, the Supreme Court had to answer whether the Sixth Amendment requires a unanimous verdict. Defining what entails as an “impartial jury” described in the Sixth Amendment was key to their decision.
The Court ultimately agreed that the Sixth Amendment indeed entails a unanimous verdict both in State and Federal court. However, the Court found that what has caused Louisiana and Oregon to continue the acceptance of 10-2 verdicts is a set of “fractured” opinions brought forth during Apodaca v. Oregon (1971).
Justices during Apodaca v. Oregon questioned the benefits of unanimous verdicts and whether federally-granted rights to unanimous verdicts are applicable to States through the Fourteenth Amendment.
Justice Neil Gorsuch examines the validity of these claims that question whether the Sixth Amendment applies differently in States. Nevertheless, the Court did not find sufficient evidence to deem the Sixth Amendment to behave differently in State and Federal Courts.
Justice Gorsuch concludes the reversed judgment of the Court of Appeals by addressing the fear of having to re-visit other non-unanimous cases in his statement that “it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.”
Justice Sonia Sotomayor in a concurring opinion writes that, first off, “overruling precedent here is not only warranted but compelled. Second, the interests at stake point far more clearly to that outcome than those in other recent cases. Lastly, the racially biased origins of the Louisiana and Oregon laws uniquely matter here.”
The Court has long recognized that the Sixth Amendment requires unanimity. Where the State’s power to imprison those like Mr. Ramos rests on erroneous interpretations of the jury trial right, the Court should not hesitate to reconsider precedents. The majority describes the legacy of racism that generated Louisiana’s and Oregon’s laws and the history is worthy of this Court’s attention.
Justice Sotomayor states, “Where a law otherwise is untethered to racial bias and also where a legislature actually confronts a law’s tawdry past in reenacting it, the new law may well be free of discriminatory taint… While overruling precedent must be rare, this Court should not shy away from correcting its errors where the right to avoid imprisonment pursuant to unconstitutional procedures hangs in the balance.”
Justice Brett Kavanugh agrees that the time has come to overrule Apodaca and that state juries must be unanimous in order to convict a criminal defendant. He explains that stare decisis does not entail that the Court never overrule erroneous precedents. All Justices agree that it is sometimes appropriate to do so. Historically, some of the Court’s most notable and consequential decisions have entailed overruling precedents, such as Brown v. Board of Education (1954) and Brandenburg v. Ohio (1969).
Justice Kavanaugh explicitly states, “The question is not whether the Constitution prohibits non-unanimous juries, it does. Rather, the question is whether to overrule an erroneous constitutional precedent that has allowed non-unanimous juries. On top of that question is whether to overrule the Jim Crow origins and racially discriminatory effects of non-unanimous juries in Louisiana and Oregon should matter and should count heavily in favor of overruling.”
Justice Clarence Thomas also provided a concurring opinion to the judgment but writes separately on the basis that his agreement stems from the Court’s interpretation of the Sixth Amendment has always required unanimity in guilty verdicts and “this right applies against the States through the Privileges or Immunities Clause of the Fourteenth Amendment, not the Due Process Clause.”
He states Thomas v. Utah (1898) was the first case where the court required unanimity according to the Sixth Amendment and in Patton v. United States (1930), the court specifically stated “that the verdict should be unanimous.”
Referencing the Apodaca decision, Justice Thomas notes that “five Justices agreed that ‘the Sixth Amendment’s guarantee of trial by jury embraces a guarantee that the verdict of the jury must be unanimous.’”
In considering stare decisis, Justice Thomas wrote, “There is considerable evidence that the phrase ‘trial . . . by . . . jury’ in the Sixth Amendment was understood since the founding to require that a felony guilty verdict be unanimous. Because our precedents are thus not outside the realm of permissible interpretation, I will apply them.”
He then references the precedents of Alden v. Maine (1999) which “wrote that no subject can ‘be affected either in his property, his liberty, or his person, but by the unanimous consent’ of a jury.”
Justice Thomas also addresses Louisiana’s argument concerning the omission of unanimous jury trials in the State Constitution, stating “respondent Louisiana argues that the omission of an express unanimity requirement in the Sixth Amendment reflects a deliberate choice.
“This argument fails to establish that the Court’s decisions are demonstrably erroneous,” Justice Thomas concludes.
He also notes that other states “continued to interpret the phrase ‘trial by jury’ to require unanimity in felony guilty verdicts,” listing the New Hampshire Superior Court of Judicature and the Missouri Supreme Court as examples.
Justice Thomas also expands on his Fourteenth Amendment approach, stating that “the Sixth Amendment right to a trial by jury is certainly a constitutionally enumerated right” and should be protected by the Privileges and Immunities Clause which “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
He argues the court uses the Due Process approach but the Privileges and Immunities Clause would fit the argument better, stating, “Due process incorporation is a demonstrably erroneous interpretation of the Fourteenth Amendment.
“I have already rejected our due process incorporation cases as demonstrably erroneous, and I fundamentally disagree with applying that theory of incorporation simply because it reaches the same result in the case before us,” Justice Thomas states. “Close enough is for horseshoes and hand grenades, not constitutional interpretation.”
One dissenting opinion, however, was also provided to the court.
Justice Samuel Alito wrote the dissenting opinion, joined in a dissenting vote by Chief Justice John Roberts. Justice Elena Kagan also agrees with the portion of the dissenting opinion noting that stare decisis has been “treated roughly” and the reliance of the Ramos v. Louisiana case on the Apodaca was too much to ignore.
“The doctrine of stare decisis gets rough treatment in today’s decision,” Justice Alito writes. “Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered. If the majority’s approach is not just a way to dispose of this one case, the decision marks an important turn.”
He notes that the Court upheld the Apodaca decision in 1972 and Louisiana and Oregon “have tried thousands of cases under rules that permit such verdicts” and this decision will create “a potentially crushing burden on the courts and criminal justice systems of those State.
“The Court, however, brushes aside these consequences and even suggests that the States should have known better than to count on our decision,” Justice Alito writes. “To add insult to injury, the Court tars Louisiana and Oregon with the charge of racism for permitting nonunanimous verdicts—even though this Court found such dissenting verdicts to be constitutional and even though there are entirely legitimate arguments for allowing them.”
He states he would not overrule the Apodaca decision, writing the decision “appeared to have little practical importance going forward. Louisiana has now abolished non-unanimous verdicts, and Oregon seemed on the verge of doing the same until the Court intervened.”
Justice Alito states that the argument that non-unanimous verdicts being implemented to disenfranchise African Americans does not apply to the broad constitutional question. He considers the argument to be an ad hominem—unsound attempts that attack the character or motive of a decision.
The constitutions of Louisiana and Oregon, he states, were not made for a discriminatory purpose. He also notes that the Ramos v. Louisiana decision does not apply to only Louisiana and Oregon but all states, so “the origins of the Louisiana and Oregon rules have no bearing on the broad constitutional question that the Court decides.”
Justice Alito then notes the British Parliament, the constitution of Puerto Rico, and, at a time in the past, the American Law Association and the American Bar Association advocated for non-unanimous verdicts.
“Racists all? Of course not. So all the talk about the Klan, etc., is entirely out of place,” Justice Alito writes.
Justice Alito also examines and argues against the opinions of three other justices in terms of Apodaca failing to be a precedent and why stare decisis supports the retention of that precedent.
“Three Justices take the position that Apodaca was never a precedent,” Justice Alito said. “The only fitting response to this argument is, ‘Really?’… if Apodaca was never a precedent[, it] would mean that the entire legal profession was fooled for the past 48 years.”
He notes that the Apodaca decision was the basis by which thousands of Louisiana and Oregon cases were determined.
“The idea that Apodaca was a phantom precedent defies belief,” he writes.
Justice Alito continues to defend that the Apodaca decision is a precedent, stating, “Even though there was no opinion of the Court, the decision satisfies even the narrowest understanding of a precedent as this Court has understood the concept: The decision prescribes a particular outcome when all the conditions in a clearly defined set are met.”
He also notes, “If the Apodaca Court had summarily affirmed a state-court decision holding that a jury vote of 10 to 2 did not violate the Sixth Amendment, that summary disposition would be a precedent. Accordingly, it is impossible to see how a full-blown decision of this Court reaching the same result can be regarded as a non-precedent.”
Justice Alito states that three justices “begin by suggesting that Louisiana conceded that Apodaca is not a precedent,” which he argues is a questionable stance, and they then “argue that Apodaca is not binding because a case has no ratio decidendi when a majority does not agree on the reason for the result.”
In regard to the stare decisis argument, Justice Alito notes that, while stare decisis is crucial in the justice system, “it has an obligation to provide an explanation for its decision… because the Court should have a body of neutral principles on the question of overruling precedent. The doctrine should not be transformed into a tool that favors particular outcomes.”
He describes that the arguments against the Apodaca decision to be “badly fractured” could also be applied to the four separate approaches the majority approving the decision are taking. Justice Alito notes that many decisions decided by the court did not have an opinion.
“Does the majority mean to suggest that all such precedents are fair game?” Justice Alito writes.
He also notes that the reliance in the Ramos v. Louisiana decision on the Apodaca decision “far outstrips that asserted in recent cases in which past precedents were overruled.
“By striking down a precedent upon which there has been massive and entirely reasonable reliance, the majority sets an important precedent about stare decisis,” Justice Alito said. “I assume that those in the majority will apply the same standard in future cases.”
Danielle Silva contributed to this article
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