Ramos v Louisiana: Stare Decisis, the 14th Amendment, and Unanimous Juries

For decades only two states have required less than unanimity in criminal jury trials. The constitutionality of that was affirmed in a case called Abodaca v Oregon (1972) in a 4-1-4 split decision, with Justice Powell being the deciding justice, ruling that the 6th Amendment was not incorporated to the states by the due process clause of the 14th Amendment.

You will remember that until the 14th Amendment, the Bill of Rights applied only to the federal government and not to the states. It remained for John Bingham and the 39th Congress to attempt to have them apply to the states through the Privileges or Immunities Clause. I say “tried” because the Supreme Court was reluctant to interpret the way Bingham and the 39th Congress intended until the mid-twentieth century when the due process clause of the 14th was used to selectively apply the Bill of Rights to the states. By 1972, most of the 10 amendments had been applied to the states. After Abodaca the parts of the 6th remained applicable only to the federal government. [Note that Clarence Thomas has been a proponent of using the Privileges or Immunities Clause of the 14th to apply all of the Bill of Rights to the states rather than use the selective due process clause in what he regards as a haphazard manner.(4)

What to do about Abodaca has been the subject of recent oral arguments before the Supreme Court in Ramos v Louisiana. Louisiana and Oregon are the only two states that have not required a unanimous verdict in criminal jury trials. That changed when two years ago when Louisiana changed its law and now requires a unanimous verdict. Note that the Constitution does not require a unanimous verdict, only “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." The Court has interpret this to require a unanimous verdict, at least in federal courts.

Ramos, who was convicted in a 10-2 verdict and sentenced to life, but who has maintained his innocence, argued that a unanimous verdict is essential to fair trial, that non-unanimous jury verdicts are unconstitutional, especially given the disparity between federal and state requirements, and that Apodaca should be overturned, hence the discussion of stare decisis, the principle that judges should follow precedent whenever possible. Apodaca was a precedent set by just one justice and that, too, came up in oral arguments.

The origin of non-unanimous verdicts was dissected in an article in the New Republic (1) Louisiana and Oregon have conviction rates much higher than other states and needing only ten of twelve jurors to agree is one reason why. “Anyone charged with a crime in Louisiana is more likely to be convicted than in any other state, save Oregon (which also has a non-unanimous criminal jury standard), by a factor of one in six,” Valdosta State University history professor Thomas Aiello wrote in a recent book documenting the racist origins of the Louisiana rule. “If someone is charged with a crime on the western bank of the Mississippi River, he or she has a 17 percent better chance of being convicted than if charged on the eastern bank.”

The adoption of the rule flowed from the passage of the 14th Amendment, that forced the state to include black people in juries. Since Louisiana required juries to reach unanimous decisions, as was standard, this meant a single black person on the jury would have a lot of power — which would weaken white Louisianans’ hold over the state, its government, and its laws. “This was part of the 1898 constitutional convention, which is famous for disenfranchising black voters,” Lawrence Powell, a historian at Tulane University in New Orleans, told me. “It was also around the time of the Plessy [v. Ferguson] case that just got sanction from the US Supreme Court for racial segregation. It’s all part of that mix.” Because race was not explicitly stated as the reason for the non-unanimous rule, the Supreme Court had always given it a pass even though at the 1898 convention when it was adopted, racial reasons were explicitly stated: “The goal, said Kruttschnitt, was the ‘purification of the electorate.’ The Judiciary Committee Chair, Judge Thomas Semmes, was more blunt. He declared that the purpose was ‘to establish the supremacy of the white race in this State to the extent to which it could be legally and constitutionally done....’” (2)

Louisiana changed its constitution in 2018 to require unanimous jury decisions. It was not retroactive.

The origin of Oregon’s rule is more recent but equally fraught. Angry with the failure to convict a Jewish gangster of murder, nativist and anti-semitic feelings prevailed and a felony conviction now required only an 11-1 or 10-2 vote by a jury. It has also been argued since that not requiring a unanimous verdict is far more expeditious.

The Apodaca decision that Louisiana and Oregon want upheld was unusual in that Powell, who wrote the prevailing opinion, couched it in very narrow terms, not completely allying himself with either countervailing group, one for upholding the unanimous requirement, the other not. “There is no reason to believe, on the basis of experience in Oregon or elsewhere, that a unanimous decision of 12 jurors is more likely to serve the high purpose of jury trial, or is entitled to greater respect in the community, than the same decision joined in by 10 members of a jury of 12,” Powell wrote. (3) He joined with Blackmun, White, Burger, and Rehnquist in upholding the Oregon law. The decision also revealed incredible naivete: “Jury unanimity is not mandated by the Fourteenth Amendment requirements that racial minorities not be systematically excluded from the jury selection process; even when racial minority members are on the jury, it does not follow that their views will not be just as rationally considered by the other jury members as would be the case under a unanimity rule.”(3)

Louisiana and Oregon both filed briefs arguing that stare decisis should prevail. Louisiana’s Attorney General paraded the “horribles” scenario that those convicted prior to the state’s adoption of the unanimous requirement would all seek new trials. (Ramos had appealed his conviction before Louisiana adopted the new rule.) Oregon argued in its brief that overturning Apodaca would unsettle the law rather than making it more consistent and destablize; that stare decisis should prevail in this case. Of course, the elephant, turning pink in the room, was Roe v Wade. This will be a fascinating case to watch.

1. https://newrepublic.com/article/154884/jim-crow-returns-supreme-court
2. https://www.vox.com/policy-and-politics/2018/11/6/18052540/election-results-louisiana-amendment-2-unanimous-jim-crow-jury-law
3. https://supreme.justia.com/cases/federal/us/406/404/
4. https://ij.org/wp-content/uploads/2018/09/Blackman_Shapiro_14at150_DRAFT.pdf
“Five short years after the Fourteenth Amendment was ratified, the Supreme Court eviscerated the Privileges or Immunities Clause. The Slaughterhouse Cases (1873) held that the provision protects only a fairly narrow subset of federal rights. Two years later, in United States v. Cruikshank, the Court rejected the argument that the right to keep and bear arms, expressly recognized in the Second Amendment, was one of the privileges or immunities of citizenship. With this one-two punch, the cornerstone of the Fourteenth Amendment was forgotten. The Supreme Court would not revisit these decisions until McDonald v. City of Chicago (2010). There, only Justice Clarence Thomas was willing to restore the Privilege or Immunities Clause’s original meaning. “

Review: Field of Prey by John Sandford

I worry about Sandford's imagination reading this book and some of the other titles where he inserts the actions and thinking of the bad guys. The killer in this one rapes and kills women and the vividness and detail with which Sandford recounts his actions is beyond chilling; it's obscene and pornographic. There's a vast chasm between erotic pornography that's loving and tender and that which is brutal and sadistic. This is the latter and it's not pleasant. One wonders about a mind that can even think up this stuff. I'm not sure I would want Sandford over for dinner.

There is a side plot (one wonders why it was included at all) involving the brother of a man shot by police during a bank robbery. Lucas is portrayed by the media as celebrating the man's death ("the police showed great restraint" in striking the man with only 20 bullets) and having been involved setting the man up for the shooting. From other comments made during the book, it's clear Sandford despises the media (ironic as Sandford is a pseudonym for John Camp a former journalist), and the name of the brother, "Immanuel Kent" can't possibly be an accident and must be a reference to Immanuel Kant, who gave us the "categorical Imperative" and the moral worth of an individual comes less from the consequences of his actions than from his motivations. Lucas' motivations in warning the police of the bank robbery was good, but the actual consequence was bad. The brother (supported by the media) seems to argue that he should be responsible for the unintended consequences, distinctly un-Kantian.

No need to repeat the plot. Lots of those descriptions available. That said, he has created some interesting characters. Davenport and his sidekicks have become more interesting as the series has progressed. And having Flowers make an appearance never hurts, either. I enjoyed this audio-book which was well read (as ever) by Richard Ferrone. 

Review: A Corporate Tragedy: The Agony of International Harvester Company by Barbara Marsh

A very enjoyable and interesting book that begins with a history of the reaper and its impact on American farming. The McCormick family, descendants of its inventor, built the company through beneficial mergers and clever marketing. Henry Ford was selling his Fordson tractor at a loss to gain market share. Harvester went one better by throwing in a plow, too. Their salesmen would travel around looking for Fordson dealers and demos, offering to match their tractors against Ford's, and they usually won, building a devoted customer base. IH's Farmall line was immensely popular as it was just that, a machine that did it all. It took a multitude of attachments like the 4 row cultivator that saved the farmer a huge number of man-hours. *

I remember driving a Ford 9n on my uncle's dairy farm. It was a small, squat, tractor, useful for hauling wagons and small chores. He also had a Farmall MD (new in 1952); a diesel that used a small gas engine to get it started (the switch over with the lever was very cool), but my favorite was the Oliver 77 (might have been an 88, not sure) that was the absolute best because it had a six-cylinder engine. (I hated the two-cylinder John Deere tractors - they didn't switch to more cylinders until the early sixties. And we won't even talk about the stupid hand clutch.**) To my mind Oliver made the best tractors and only went under because of mismanagement, something that we will see more of in this book.

By the fifties the company was thriving, engaged in supplying multiple markets besides farm machinery, including trucks, home appliances, and industrial machinery. However, several battles on the management and labor side threatened its dominance. There was a management battle between McCaffrey and Fowler McCormack. McCormack had become a devotee of Carl Jung and would spend months each year in Switzerland at the master's feet while McCaffrey fumed in the states. He eventually took his concerns to the board who, much to Fowler's surprise, sided with McCaffrey, relegating McCormick to a titular post. Bad blood between the two continued for years. Unlike Fowler, McCaffrey was a salesman with little feel for reining in sales demands and soon IH was offering its customers 168 different models of trucks driving the factories crazy. 

Harvester had a significant number of farmers who loved red and had the dealer network to support it. They were loyal because of excellent relationships with dealers who often carried them on equipment they needed immediately, but could not pay for right away. However, the company was falling behind John Deere, which produced superior equipment and service. The author also suggests that another reason for their success was the location of Deere's headquarters in Moline, Illinois closer to the farms they served rather than Harvester's dedication to Chicago as headquarters. Deere executives all live(d) on on near farms. They too had a strong dealership network. They did it by coddling the dealers rather than Harvester's tactic of hard sell of forcing dealers to do things their way.

In the meantime the company was also battling unions and the unions were battling each other in a fight between the FE (Farm Equipment union) and the UAW each seeking to oust the other. Strikes were often called just to hurt the other union and in the decade following the war, there were 1,200 work stoppages and 48,000 job grievances between 1954 and 1959. That was unsupportable. In the end, HUAC destroyed the FE whose leaders were investigated for purported Communist activities. The union's rank and file were caught up in the anti-Communist fervor. That coupled with management's desire to break the union was its death knell.

By the sixties and seventies, Harvester was running into problems endemic to older established entities. They had had a long and beloved history of paying substantial dividends, but as their factories aged and other lines required investment, the capital was being paid out in dividends, making shareholders happy, but starving the company for capital reinvestment. So they had to rely on borrowing but thanks to the Vietnam War and other factors, interest rates were at an all time high (I remember them as high as 17% when I was thinking about buying a farm) and that kind of interest rate will make borrowing exorbitantly expensive. It was a vicious cycle, the sales force kept pushing weakly designed and ill-tested new equipment out the door, which then failed pushing market share lower making even less capital available especially with the profits all going out the door as dividends. 

Harvard Business School (you know the school that gave us the creators of derivatives and other high risk financial instruments) was invited to visit and review IH's attempts at rebound. "In a sense [they wrote] the problems at Harvester faces are the problems of American industry, and to that extent is prototypical of corporate American industry,...how to compete in a slow-growth, capital-intensive market when you're not the market leader." By this time John Deere, which had recognized much earlier recognized the need for higher horse power tractors, dominated the agricultural sector and had built highly automated factories. And, of course, the changes Archie McCardle, hired away from Xerox with a huge compensation package, wanted and needed to implement, met with resistance from those who had been with IH a long time. His strategy of giving employees targets beyond what they thought were acceptable and possible could be disconcerting and morale busting when they were unable to meet those targets. 

But lest this review get completely out of hand, I will just summarize and say it's a fascinating examination of the rise and fall of an iconic American company, the kind of representative history that has happened to many other companies: Sears, Montgomery Ward, K-Mart, etc., etc. and that will no doubt happen to many others when their founders leave the scene. I only wish the book could have been updated past its 1985 publication. IH was sold to Tennaco in 1985 which merged the IH tractor line with their Case line becoming Case/IH. Fortunately they adopted red as the new paint scheme rather than Case's desert sand colors as well as the Farmall designation. Excellent read.

*The Moline Model D was probably the first to offer multiple attachments on a tractor. For its time it was incredibly versatile and to my knowledge the first articulated design. See http://molineplowco.com/tractors/
 
**In John Deere's defense, the old two-cylinder had incredible fuel economy and lugging power. The 730, out in 1959, had accessories that beat the competition - like their seat, far and away the most comfortable.