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. “
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