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Ramos v. Louisiana: Does the 14th Amendment Require Unanimous Jury Verdicts?

October 9, 2019 by Robert Black


When we think about trial by jury in criminal cases, we all probably envision a 12-member jury that must reach a unanimous verdict to convict. But under a pair of Supreme Court cases from half a century ago, that is not actually a constitutional requirement.

In Williams v. Florida (1970) the Court held that the Sixth Amendment does not require that a jury must consist of 12 jurors—it would later specify in Ballew v. Georgia (1978) that a jury can be as small as six, but no smaller. And in a split decision in Apodaca v. Oregon (1972), the Court ruled that the Sixth Amendment does require unanimous verdicts in federal courts—but the 14th Amendment does not require unanimous verdicts in state courts. Eight out of nine Justices thought the rule should be the same at both the state and federal levels, with four thinking that unanimous verdicts are required in both contexts and four saying they are never required. But Justice Lewis Powell cast the deciding vote to split the difference.

Today, many states continue to use smaller juries, especially for trying less serious crimes, but only two states, Oregon and Louisiana, allow conviction by a non-unanimous verdict (and Louisiana has changed its law going forward). Recent historical evidence suggests that these states adopted their non-unanimous jury rules for essentially racist reasons: Louisiana in the 1880s, after the Supreme Court ruled in Strauder v. West Virginia that African-Americans could not be excluded from jury service; and Oregon in 1934, after a single juror prevented a Jewish man’s conviction for murdering a Protestant, which led to a nativist, race-baiting public fervor against immigrant jurors. Non-unanimous verdicts were a way for these states to disempower minority jurors even if they could not formally exclude them.

Which brings us to this week, when the Supreme Court heard arguments in Ramos v. Louisiana. Evangelisto Ramos was convicted of a 2014 murder in New Orleans in state court by a vote of 10 jurors to 2. He has challenged the practice of non-unanimous verdicts as unconstitutional, arguing that Apodaca should be overruled. Louisiana, meanwhile, also takes issue with Justice Powell’s split holding in Apodaca: It contends primarily that the Sixth Amendment itself does not require unanimous verdicts.

To understand why the state is not defending the full result in Apodaca, we need to understand the doctrine of incorporation. Before the Civil War, it was understood that the Bill of Rights only limited the federal government and did not apply to the states. But most historians and legal scholars now agree that one important purpose of the 14th Amendment, ratified just after the War, was to change that. Initially the Supreme Court resisted this view, but in a series of cases throughout the twentieth century it gradually held that almost every provision of the Bill of Rights is “incorporated” into the 14th Amendment’s guarantee of due process. This emphatically includes the Sixth Amendment right to trial by jury, as the Court held in Duncan v. Louisiana (1968).

One question that has come up throughout the incorporation debate is whether, if a provision of the Bill of Rights does apply to the states through the 14th Amendment, it applies with equal force and with the exact same contours. Overwhelmingly the answer has been “yes.” Even though the Court, through its practice of “selective incorporation,” has never held that the entire Bill of Rights applies to the states, it has been reasonably consistent that the provisions that do apply to the states do so in exactly the same way that they apply to the federal government. This principle was reiterated last year in Timbs v. Indiana, which incorporated the Eighth Amendment’s Excessive Fines Clause for the first time.

All of which leaves Justice Powell’s vote in Apodaca as quite an anomaly. He thought, along with four other Justices, that the Sixth Amendment itself requires unanimous verdicts—which have been the uniform practice in the federal system since the Founding. If that is so, that would ordinarily mean that the same should be true at the state level. In fact, this is the only significant issue where current law says that the rule is meaningfully different under the original Bill of Rights and under the 14th Amendment. Ramos’s appeal asks the Justices to resolve that contradiction, and to resolve it in favor of unanimous verdicts across the board. The state, conversely, feels that its best chance to win is to convince the Court that the four Justices in Apodaca who thought the Sixth Amendment did not require unanimity were correct.

Much of the argument revolved around issues of stare decisis, as is typically the case whenever the Court is asked to revisit one of its prior decisions. Ramos’s counsel argued that this is far from an ordinary stare decisis case, because the decision in Apodaca was so splintered and because Justice Powell’s reasoning has been thoroughly repudiated by many other decisions. Counsel for Louisiana, on the other hand, mostly got tied in knots about whether they were asking the Court to reaffirm Apodaca or to overrule one-half of its holding, and if the latter, how they could invoke stare decisis at all.

As far as the constitutional question, one major focus was the text and history of the Sixth Amendment. Louisiana pointed out that an earlier draft of the amendment would’ve expressly required unanimity, while Ramos’s lawyer—and several of the Justices—responded that this could mean only that they thought it went without saying.

The other main concern was the relationship between unanimity and the size of the jury. The lawyer for Louisiana argued at length that the Court should view these two requirements as equivalent, and that therefore if it overrules Apodaca it must overrule Williams as well. That would arguably have far more serious practical consequences, as small juries are much more widespread than non-unanimous ones. Ramos’s counsel argued to the contrary that Williams correctly held the 12-juror rule to be an historical accident, while the requirement of unanimity is truly fundamental. Several Justices pushed back, asking why a defendant should be satisfied with a 6-0 vote to convict but not 11-1, or for that matter (if a state were to adopt even larger jury sizes) of 21-1.

At the end of the day, it seems likely that the Court will side with Ramos, clearing away the anomaly of Apodaca altogether and requiring unanimous verdicts at both the state and the federal levels. Justices Kavanaugh and Gorsuch, as well as the four more liberal Justices, seemed highly skeptical of Louisiana’s arguments. At the same time, Justice Kagan in particular displayed at least some interest in preserving Apodaca and the flexibility it affords the states, and was not convinced by Ramos’s argument that Apodaca carries minimal weight as precedent.

Robert Black is Senior Fellow for Constitutional Content at the National Constitution Center.


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