SUPREME COURT OF
THE UNITED STATES EVANGELISTO
RAMOS, PETITIONER v. LOUISIANA [April 20, 2020] Justice Gorsuch
announced the judgment of the Court and delivered the
opinion of the Court with
respect to Parts I, II–A, III, and IV–B–1. Accused of a serious crime,
Evangelisto Ramos insisted on
his innocence and invoked his right to a jury trial.
Eventually, 10 jurors
found the evidence against him persuasive. But a pair of
jurors believed that
the State of Louisiana had failed to prove Mr. Ramos’s
guilt beyond reasonable
doubt; they voted to acquit. In 48 States and federal court, a
single juror’s vote to
acquit is enough to prevent a conviction. But not in
Louisiana. Along with
Oregon, Louisiana has long punished people based on
10-to-2 verdicts like the
one here. So instead of the mistrial he would have
received almost anywhere
else, Mr. Ramos was sentenced to life in prison without
the possibility of
parole. Why do Louisiana and Oregon allow
non-unanimous convictions?
Though it’s hard to say why these laws persist, their
origins are clear.
Louisiana first endorsed non-unanimous verdicts for
serious crimes at a
constitutional convention in 1898. According to one
committee chairman, the
avowed purpose of that convention was to “establish the
supremacy of the white
race,” and the resulting document included many of the
trappings of the Jim
Crow era: a poll tax, a combined literacy and property
ownership test, and a
grandfather clause that in practice exempted white
residents from the most onerous
of these requirements. Nor was it only the prospect of
African-Americans voting
that concerned the delegates. Just a week before the
convention, the U. S.
Senate passed a resolution calling for an investigation
into whether Louisiana
was systemically excluding African-Americans from
juries. Seeking to avoid
unwanted national attention, and aware that this Court
would strike down any
policy of overt discrimination against African-American
jurors as a violation
of the Fourteenth Amendment, the delegates sought to
undermine African-American
participation on juries in another way. With a careful
eye on racial
demographics, the convention delegates sculpted a
“facially race-neutral” rule
permitting 10-to-2 verdicts in order “to ensure that
African-American juror
service would be meaningless.” Adopted in the 1930s, Oregon’s rule
permitting non-unanimous
verdicts can be similarly traced to the rise of the Ku
Klux Klan and efforts to
dilute “the influence of racial, ethnic, and religious
minorities on Oregon juries.”
In fact, no one before us contests any of this; courts
in both Louisiana and
Oregon have frankly acknowledged that race was a
motivating factor in the
adoption of their States’ respective non-unanimity
rules. We took this case to decide whether
the Sixth Amendment
right to a jury trial—as incorporated against the States
by way of the
Fourteenth Amendment—requires a unanimous verdict to
convict a defendant of a
serious offense. Louisiana insists that this Court has
never definitively
passed on the question and urges us to find its practice
consistent with the
Sixth Amendment. By contrast, the dissent doesn’t try to
defend Louisiana’s law
on Sixth or Fourteenth Amendment grounds; tacitly, it
seems to admit that the
Constitution forbids States from using non-unanimous
juries. Yet, unprompted by
Louisiana, the dissent suggests our precedent requires
us to rule for the State
anyway. What explains all this? To answer the puzzle,
it’s necessary to say a
bit more about the merits of the question presented, the
relevant precedent,
and, at last, the consequences that follow from saying
what we know to be true. I The Sixth Amendment promises that
“[i]n 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.”
The Amendment goes on to preserve other rights for
criminal defendants but says
nothing else about what a “trial by an impartial jury”
entails. Still, the promise of a jury trial
surely meant
something—otherwise, there would have been no reason to
write it down. Nor
would it have made any sense to spell out the places
from which jurors should
be drawn if their powers as jurors could be freely
abridged by statute. Imagine
a constitution that allowed a “jury trial” to mean
nothing but a single person
rubberstamping convictions without hearing any
evidence—but simultaneously
insisting that the lone juror come from a specific
judicial district
“previously ascertained by law.” And if that’s not
enough, imagine a
constitution that included the same hollow guarantee
twice—not only in the
Sixth Amendment, but also in Article III. No: The text
and structure of the
Constitution clearly suggest that the term “trial by an
impartial jury” carried
with it some meaning about the content and requirements
of a jury trial. One of these requirements was
unanimity. Wherever we might
look to determine what the term “trial by an impartial
jury trial” meant at the
time of the Sixth Amendment’s adoption—whether it’s the
common law, state
practices in the founding era, or opinions and treatises
written soon
afterward—the answer is unmistakable. A jury must reach
a unanimous verdict in
order to convict. The requirement of juror unanimity
emerged in 14th- century
England and was soon accepted as a vital right protected
by the common law.
As Blackstone explained, no person could be
found guilty of a serious crime unless “the truth of
every accusation . . . should
. . . be confirmed by the unanimous suffrage of twelve
of his equals and
neighbors, indifferently chosen, and superior to all
suspicion.”[10] A
“‘verdict, taken from eleven, was no verdict’ ” at all. This same rule applied in the young
American States. Six
State Constitutions explicitly required unanimity.
Another four preserved the
right to a jury trial in more general terms.But the
variations did not matter
much; consistent with the common law, state courts
appeared to regard unanimity
as an essential feature of the jury trial. It was against this backdrop that
James Madison drafted and
the States ratified the Sixth Amendment in 1791. By that
time, unanimous
verdicts had been required for about 400 years. If the
term “trial by an
impartial jury” carried any meaning at all, it surely
included a requirement as
long and widely accepted as unanimity. . . Nor is this a case where the original
public meaning was
lost to time and only recently recovered. This Court
has, repeatedly and over
many years, recognized that the Sixth Amendment requires
unanimity. As early as
1898, the Court said that a defendant enjoys a
“constitutional right to demand
that his liberty should not be taken from him except by
the joint action of the
court and the unanimous verdict of a jury of twelve
persons.” A few decades
later, the Court elaborated that the Sixth Amendment
affords a right to “a
trial by jury as understood and applied at common law, .
. . includ[ing] all
the essential elements as they were recognized in this
country and England when
the Constitution was adopted.”And, the Court observed,
this includes a
requirement “that the verdict should be unanimous.”In
all, this Court has
commented on the Sixth Amendment’s unanimity requirement
no fewer than 13 times
over more than 120 years. There can be no question either that
the Sixth Amendment’s
unanimity requirement applies to state and federal
criminal trials equally.
This Court has long explained that the Sixth Amendment
right to a jury trial is
“fundamental to the American scheme of justice” and
incorporated against the
States under the Fourteenth Amendment. This Court has
long explained, too, that
incorporated provisions of the Bill of Rights bear the
same content when
asserted against States as they do when asserted against
the federal
government. So if the Sixth Amendment’s right to a jury
trial requires a
unanimous verdict to support a conviction in federal
court, it requires no less
in state court. II A How, despite these seemingly
straightforward principles,
have Louisiana’s and Oregon’s laws managed to hang on
for so long? It turns out
that the Sixth Amendment’s otherwise simple story took a
strange turn in 1972.
That year, the Court confronted these States’
unconventional schemes for the
first time—in Apodaca v. Oregon and a companion case,
Johnson v. Louisiana.
Ultimately, the Court could do no more than issue a
badly fractured set of
opinions. Four dissenting Justices would not have
hesitated to strike down the
States’ laws, recognizing that the Sixth Amendment
requires unanimity and that
this guarantee is fully applicable against the States
under the Fourteenth
Amendment. But a four-Justice plurality took a very
different view of the Sixth
Amendment. These Justices declared that the real
question before them was whether
unanimity serves an important “function” in
“contemporary society.” Then,
having reframed the question, the plurality wasted few
words before concluding
that unanimity’s costs outweigh its benefits in the
modern era, so the Sixth
Amendment should not stand in the way of Louisiana or
Oregon. The ninth Member of the Court adopted
a position that was
neither here nor there. On the one hand, Justice Powell
agreed that, as a
matter of “history and precedent, . . . the Sixth
Amendment requires a
unanimous jury verdict to convict.”But, on the other
hand, he argued that the
Fourteenth Amendment does not render this guarantee
against the federal
government fully applicable against the States. In this
way, Justice Powell
doubled down on his belief in “dual-track”
incorporation—the idea that a single
right can mean two different things depending on whether
it is being invoked
against the federal or a state government. Justice Powell acknowledged that his
argument for dual-track
incorporation came “late in the day.” Late it was. The
Court had already,
nearly a decade earlier, “rejected the notion that the
Fourteenth Amendment
applies to the States only a ‘watered-down, subjective
version of the
individual guarantees of the Bill of Rights.’ ”It’s a
point we’ve restated many
times since, too, including as recently as last year.
Still, Justice Powell
frankly explained, he was “unwillin[g]” to follow the
Court’s precedents. So he
offered up the essential fifth vote to uphold Mr.
Apodaca’s conviction—if based
only on a view of the Fourteenth Amendment that he knew
was (and remains)
foreclosed by precedent. B In the years following Apodaca, both
Louisiana and Oregon
chose to continue allowing nonunanimous verdicts. But
their practices have
always stood on shaky ground. After all, while Justice
Powell’s vote secured a
favorable judgment for the States in Apodaca, it’s never
been clear what
rationale could support a similar result in future
cases. Only two
possibilities exist: Either the Sixth Amendment allows
nonunanimous verdicts,
or the Sixth Amendment’s guarantee of a jury trial
applies with less force to
the States under the Fourteenth Amendment. Yet, as we’ve
seen, both bear their
problems. In Apodaca itself, a majority of
Justices—including Justice
Powell—recognized that the Sixth Amendment demands
unanimity, just as our cases
have long said. And this Court’s precedents, both then
and now, prevent the
Court from applying the Sixth Amendment to the States in
some mutated and
diminished form under the Fourteenth Amendment. So what
could we possibly
describe as the “holding” of Apodaca? Really, no one has found a way to
make sense of it. In later
cases, this Court has labeled Apodaca an “exception,”
“unusual,” and in any
event “not an endorsement” of Justice Powell’s view of
incorporation.[34] At
the same time, we have continued to recognize the
historical need for
unanimity.[35] We’ve been studiously ambiguous, even
inconsistent, about what
Apodaca might mean.[36] To its credit, Louisiana
acknowledges the problem. The
State expressly tells us it is not “asking the Court to
accord Justice Powell’s
solo opinion in Apodaca precedential force.” Instead, in
an effort to win
today’s case, Louisiana embraces the idea that
everything is up for grabs. It
contends that this Court has never definitively ruled on
the propriety of non-unanimous
juries under the Sixth Amendment—and that we should use
this case to hold for
the first time that non-unanimous juries are permissible
in state and federal
courts alike. III Louisiana’s approach may not be quite
as tough as trying to
defend Justice Powell’s dual-track theory of
incorporation, but it’s pretty
close. How does the State deal with the fact this Court
has said 13 times over
120 years that the Sixth Amendment does require
unanimity? Or the fact that
five Justices in Apodaca said the same? The best the
State can offer is to
suggest that all these statements came in dicta. But
even supposing (without
granting) that Louisiana is right and it’s dicta all the
way down, why would
the Court now walk away from many of its own statements
about the
Constitution’s meaning? And what about the prior 400
years of English and
American cases requiring unanimity—should we dismiss all
those as dicta too? Sensibly, Louisiana doesn’t dispute
that the common law
required unanimity. Instead, it argues that the drafting
history of the Sixth
Amendment reveals an intent by the framers to leave this
particular feature
behind. The State points to the fact that Madison’s
proposal for the Sixth Amendment
originally read: “The trial of all crimes . . . shall be
by an impartial jury
of freeholders of the vicinage, with the requisite of
unanimity for conviction,
of the right of challenge, and other accustomed
requisites. . . .”Louisiana
notes that the House of Representatives approved this
text with minor
modifications. Yet, the State stresses, the Senate
replaced “impartial jury of
freeholders of the vicinage” with “impartial jury of the
State and district
wherein the crime shall have been committed” and also
removed the explicit
references to unanimity, the right of challenge, and
“other accustomed
requisites.” In light of these revisions, Louisiana
would have us infer an
intent to abandon the common law’s traditional unanimity
requirement. But this snippet of drafting history
could just as easily
support the opposite inference. Maybe the Senate deleted
the language about
unanimity, the right of challenge, and “other accustomed
prerequisites” because
all this was so plainly included in the promise of a
“trial by an impartial
jury” that Senators considered the language surplusage.
The truth is that we
have little contemporaneous evidence shedding light on
why the Senate acted as
it did. So rather than dwelling on text left on the
cutting room floor, we are
much better served by interpreting the language Congress
retained and the
States ratified. And, as we’ve seen, at the time of the
Amendment’s adoption,
the right to a jury trial meant a trial in which the
jury renders a unanimous
verdict. . . Faced with this hard fact,
Louisiana’s only remaining option
is to invite us to distinguish between the historic
features of common law jury
trials that (we think) serve “important enough”
functions to migrate silently
into the Sixth Amendment and those that don’t. And, on
the State’s account, we
should conclude that unanimity isn’t worthy enough to
make the trip. But to see the dangers of Louisiana’s
overwise approach,
there’s no need to look any further than Apodaca itself.
There, four Justices,
pursuing the functionalist approach Louisiana espouses,
began by describing the
“‘essential’ ” benefit of a jury trial as “‘the
interposition . . . of the
commonsense judgment of a group of laymen’ ” between the
defendant and the
possibility of an “‘overzealous prosecutor.’ ”[41] And
measured against that
muddy yardstick, they quickly concluded that requiring
12 rather than 10 votes
to convict offers no meaningful improvement. Meanwhile,
these Justices argued,
States have good and important reasons for dispensing
with unanimity, such as
seeking to reduce the rate of hung juries. Who can profess confidence in a
breezy cost-benefit analysis
like that? Lost in the accounting are the racially
discriminatory reasons that
Louisiana and Oregon adopted their peculiar rules in the
first place. What’s
more, the plurality never explained why the promised
benefit of abandoning
unanimity—reducing the rate of hung juries—always scores
as a credit, not a
cost. But who can say whether any particular hung jury
is a waste, rather than
an example of a jury doing exactly what the plurality
said it
should—deliberating carefully and safeguarding against
overzealous
prosecutions? And what about the fact, too, that some
studies suggest that the
elimination of unanimity has only a small effect on the
rate of hung juries? Or
the fact that others profess to have found that
requiring unanimity may provide
other possible benefits, including more open-minded and
more thorough
deliberations? It seems the Apodaca plurality never even
conceived of such
possibilities. Our real objection here isn’t that
the Apodaca plurality’s
cost-benefit analysis was too skimpy. The deeper problem
is that the plurality
subjected the ancient guarantee of a unanimous jury
verdict to its own
functionalist assessment in the first place. And
Louisiana asks us to repeat
the error today, just replacing Apodaca’s functionalist
assessment with our own
updated version. All this overlooks the fact that, at
the time of the Sixth
Amendment’s adoption, the right to trial by jury
included a right to a
unanimous verdict. When the American people chose to
enshrine that right in the
Constitution, they weren’t suggesting fruitful topics
for future cost-benefit
analyses. They were seeking to ensure that their
children’s children would
enjoy the same hard-won liberty they enjoyed. As judges,
it is not our role to
reassess whether the right to a unanimous jury is
“important enough” to retain.
With humility, we must accept that this right may serve
purposes evading our
current notice. We are entrusted to preserve and protect
that liberty, not
balance it away aided by no more than social statistics.
. . V On what ground would anyone have us
leave Mr. Ramos in
prison for the rest of his life? Not a single Member of
this Court is prepared
to say Louisiana secured his conviction constitutionally
under the Sixth
Amendment. No one before us suggests that the error was
harmless. Louisiana
does not claim precedent commands an affirmance. In the
end, the best anyone
can seem to muster against Mr. Ramos is that, if we
dared to admit in his case
what we all know to be true about the Sixth Amendment,
we might have to say the
same in some others. But where is the justice in that?
Every judge must learn
to live with the fact he or she will make some mistakes;
it comes with the
territory. But it is something else entirely to
perpetuate something we all
know to be wrong only because we fear the consequences
of being right. The
judgment of the Court of Appeals is reversed. |