Unanimous, Give or Take a Few: The Origins and Contemporary Repercussions of Non-Unanimous Juries
In the AMC television show Better Call Saul, the titular Saul Goodman, an unscrupulous criminal lawyer turned plain criminal, is eventually apprehended and charged for his many crimes. Facing enough consecutive life sentences to shake even a 950 year old Noah (of Ark fame), Saul spins a patently false though potentially exonerating tale of coercion and intimidation: “My crimes were committed with a gun to my head.”
“And you think jurors are gonna buy that?”, scoffs a federal prosecutor.
“One,” replies Saul. “All I need is one.”
Such is the all-or-nothing reputation of American courts where the unanimity of 12 rules. Any courtroom drama like Saul will affirm this. As do multiple Supreme Court rulings.
In Thompson v. Utah (1898), the Court ruled a defendant’s liberty “should not be taken from him except by…unanimous verdict of a jury of twelve persons”; in Andres v. United States (1948), “unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply”; and in Johnson v. Louisiana (1972), “unanimity is one of the indispensable features of federal jury trial”. However, with this distinction of “federal” in Johnson, the Court denied the right to a unanimous jury was guaranteed in state courts [10]. There, a non-unanimous jury of 12 could constitutionally convict a defendant, and in the states of Louisiana and Oregon, they would for over a century.
Even a fictive depiction of the American justice system broadcasts a fundamental truth: we require a unanimous decision to convict. So why has this anomaly infiltrated state courts? Predictably, the origins of non-unanimous juries are—like many other 19th-century jurisprudential practices—steeped in racism, and their bigoted reverberations continue to affect investigators, prosecutors, defense attorneys, judges, and, most significantly, defendants and inmates.
From its admission to the Union in 1812 to the state’s second constitutional convention in 1898, Louisiana required a unanimous jury ruling to convict a defendant [9]. During that second constitutional convention, an amendment was passed legalizing a conviction by a 9-3 jury decision. Presiding over the convention, New Orleans lawyer E.B. Kruttschnitt offered a not-so-thinly-veiled racially motivated attack against African Americans as justification for the amendment. Non-unanimous juries, he said, would solve “the question of the purification of the electorate” and eliminate “the mass of corrupt and illiterate voters who have during the last quarter of a century degraded our politics.” [10] By 1898, excluding African Americans from a jury violated the Equal Protection Clause of the 14th Amendment, but the 9-3 threshold enabled courts to permit African Americans on the jury without needing their vote for a conviction, thus elevating the authority of white jurors above the muted voices of their black counterparts. Later, at the 1973 Louisiana Constitutional Convention, voters approved an increase from 9 to 10 jurors needed to prove a defendant guilty [10].
Like Louisiana, Oregon’s non-unanimous jury laws were penned with the ink of racial prejudice and xenophobia. In 1933, a Jewish immigrant named Jake Silverman was acquitted of second-degree murder and instead found guilty of manslaughter because a lone dissenting juror did not believe the burden of proof for a murder conviction had been met [9]. Many in Oregon, with its burgeoning Ku Klux Klan presence, bemoaned how Silverman had gotten off easy—a fact attributed to the presence of “mixed-blood” jurors tainting the criminal justice process [4]. Newspapers condemned the “urbanization of American life” and the increase in eastern and southern European immigration into the United States for supposedly disfiguring America’s 12 juror system into something both “unwieldy and unsatisfactory,” [8]. Oregon was quick to enact a 1934 law permitting 10-2 verdicts in most criminal cases as part of an effort to nullify the vote of any dissenting minorities allowed on a jury [12].
Johnson v. Louisiana, along with the companion case of Apodaca v. Oregon (1972), marked the Supreme Court’s first direct ruling on the constitutionality of non-unanimous state juries. In a 5-4 decision, the court held the right to a trial by jury is not violated by non-unanimous decisions in state courts. Though the Sixth Amendment guarantees the constitutional right to a unanimous jury at the federal level, they argued the Fourteenth Amendment, which “[requires the state to] provide jury trials to those accused of serious crimes”, does not demand unanimity in jury verdicts. The court further contended the purpose of a jury—to provide the “commonsense judgment of a group of laymen”—is not inhibited by non-unanimous jury rulings as the prosecution can satisfy the “Beyond Reasonable Doubt” standard with the presence of dissenting opinions.
The Johnson ruling held for 48 years until its reversal on April 20, 2020 by Ramos v. Louisiana which established a right to a unanimous jury in both federal and state courts, as originally outlined in the Sixth Amendment. In turn, Oregon Measure 2 was rendered unconstitutional, having permitted non-unanimous verdicts in all criminal trials, except first-degree murder, for 86 years. As of 2018, Louisiana had already passed an amendment ending the state’s practice of non-unanimous juries [10]. In his concurring opinion with the Supreme Court, Justice Kavanaugh explained the non-unanimous jury “allows convictions of some who would not be convicted under the proper constitutional rule [and] tolerates and reinforces a practice that is thoroughly racist in its origins and has continuing racially discriminatory effects” (Johnson v. Louisiana). These racist byproducts are explored in research conducted by Aliza Kaplan for the Oregon Law Review, noting shocking statistics of disproportionate incarceration. Oregon touts the seventh highest rate of incarceration for African American males, with 1 in 21 black men facing imprisonment. More broadly, the highest incarceration rate of any state, demographics aside, belongs to Louisiana. Kaplan’s research also emphasizes the rate at which Oregon incarcerates African Americans compared to white Americans, 5.6 to 1, is higher than the national average of 5 to 1, and since the Supreme Court ruled non-unanimous juries to be unconstitutional, Kaplan found African Americans are responsible for 18 percent of appeal applications in Oregon, though they comprise just 8.7 percent of the state’s incarcerated population [7].
Despite Justice Kavanaugh’s recognition of non-unanimous juries’ disproportionate effects on racial minorities, he, along with five other justices, ruled against the retroactive application of Ramos v. Louisiana by the 6-3 decision of Edwards v. Vannoy on May 21, 2021. This ensured non-unanimous convictions made before Ramos would not require a retrial since the Court did not consider Ramos to be a “watershed” new rule, meaning it did not “[alter the court’s] understanding of the bedrock procedural elements essential to the fairness of a proceeding”. In his majority opinion, Justice Kavenaugh asserted: “no new rules of criminal procedure can satisfy the watershed exception.” Gideon v. Wainwright (1963), which guaranteed the right to counsel for felony defendants, marks the only time the Supreme Court has recognized a ruling as “watershed”. The Court would leave this matter for Oregon and Louisiana to decide at the state level.
In preparation for the Louisiana Court’s ruling, the Promise of Justice Initiative worked with inmates and their families to search for court transcripts or polling slips from defendants’ original trials as file keeping in the state was so poor that most inmates did not know if they had been convicted by unanimous juries. Each Louisiana parish enforced its own rules for requesting Court records, and in a mythic act of bureaucratic nonsense, these requests were often only accessible via fax machine. Eventually the Promise of Justice Initiative identified over 1,000 inmates who had been convicted by non-unanimous juries but a baffling roadblock—perhaps more confounding than using fax machines in 2018—stifled their efforts. Only inmates who filed applications with Louisiana courts within one year of the Ramos ruling could potentially have their cases retried should the state court rule in favor of retrials. According to the Marshall Project, “anyone who discovered later that their jury was not unanimous [would have needed] legislators to pass a new law in order to ask for relief” [14]. Ultimately, however, this disorganization was rendered moot. In October 2022, the Louisiana Supreme Court ruled in Reddick v. Louisiana that no new trials would be granted to inmates convicted by non-unanimous juries, citing the high administrative burden retrials would impose on the justice system, in addition to the prospective rather than retroactive status of the 2018 amendment [15]. Not for the first time, paperwork superseded justice.
Here, Oregon would finally depart from Louisiana in their courts’ practices. On December 30, 2022, the Oregon Supreme Court ruled in Watkins v. Ackley that Ramos’ requirement of unanimous jury verdicts in serious criminal cases applies retroactively to all convictions and appeals. According to an Oregon DOJ media release, the state’s Appellate Division reviewed over 750 direct appeal cases and have since reversed convictions in 470 cases which now await new trials [11]. Speaking with Emma Jerome of KOIN news, Oregon’s Multnomah County District Attorney’s Office said it fears Watkins’ ruling will strain the already limited resources of the criminal justice system and burden “the many victims throughout Oregon who are about to have their cases unexpectedly reopened.” [5]
Rectifying systemic inequities is historically a messy and tumultuous process, and, fairly or unfairly, Oregon prosecutors, defense attorneys, judges, investigators, and victims now bear the burden of their state’s past sins. However, to follow Louisiana’s example and dismiss these inequitable transgressions as mere “administrative burdens” would tragically perpetuate the 19th-century suppression of minority voices which gave birth to non-unanimous juries. In confronting its history, the challenge Oregon now faces is indeed formidable. It is also necessary if justice is to be served.
“Andres v. United States.” LII / Legal Information Institute, http://www.law.cornell.edu/supremecourt/text/333/740. Accessed 5 May 2023.
“Edwards v. Vannoy.” Oyez, http://www.oyez.org/cases/2020/19-5807. Accessed 5 May. 2023.
“Gideon v. Wainwright.” Oyez, http://www.oyez.org/cases/1962/155. Accessed 5 May. 2023.
Horton, Kami. “A Look Back at How White Supremacists Sowed Seeds of Hate in Oregon in the 20th Century.” Opb, 14 Mar. 2022, http://www.opb.org/article/2022/03/14/rise-of-klan-white-nationalism-hate-racism-oregon/.
Jerome, Emma. “Impacts of Oregon Supreme Court’s Decision to Re-Examine Non-Unanimous Jury Verdicts.” KOIN.com, 19 Jan. 2023, http://www.koin.com/news/oregon/impacts-of-oregon-supreme-courts-decision-to-re-examine-non-unanimous-jury-verdicts/#:~:text=Oregon%20and%20Louisiana%20were%20the. Accessed 5 May 2023.
“Johnson v. Louisiana, 406 U.S. 356 (1972).” Justia Law, supreme.justia.com/cases/federal/us/406/356/.
Kaplan, Aliza B., and Amy Saack. “Overturning Apodaca v. Oregon Should Be Easy: Nonunanimous Jury Verdicts in Criminal Cases Undermine the Credibility of Our Justice System.” Papers.ssrn.com, 28 Feb. 2017, papers.ssrn.com/sol3/papers.cfm?abstract_id=2922181.
Kavanaugh, Shane Dixon. “Inside the Gangland Murder That Gave Oregon Its Unusual Jury System.” Oregonlive, 22 Sept. 2017, http://www.oregonlive.com/pacific-northwest-news/2017/09/inside_the_1933_murder_trial_t.html. Accessed 5 May 2023.
Lartey, Jamiles. “What Happens Now to Hundreds Convicted by Non-Unanimous Juries.” The Marshall Project, 7 Jan. 2023, http://www.themarshallproject.org/2023/01/07/oregon-louisiana-non-unanimous-juries-unconstitutional#:~:text=Voters%20in%20Louisiana%20finally%20abolished. Accessed 5 May 2023.
“Louisiana Amendment 2, Unanimous Jury Verdict for Felony Trials Amendment (2018).” Ballotpedia, ballotpedia.org/Louisiana_Amendment_2,_Unanimous_Jury_Verdict_for_Felony_Trials_Amendment_(2018)#Text_of_measure. Accessed 5 May 2023.
Nguyen, Ally. “Oregon Supreme Court Determines Unanimous Jury Requirement Applies to Older Cases.” Oregon Department of Justice, 30 Dec. 2022, http://www.doj.state.or.us/media-home/news-media-releases/oregon-supreme-court-determines-unanimous-jury-requirement-applies-to-older-cases/. Accessed 5 May 2023.
“Oregon Criminal Trials without Juries, Measure 2 (May 1934).” Ballotpedia. Accessed 5 May 2023.
“Ramos v. Louisiana.” Oyez, http://www.oyez.org/cases/2019/18-5924. Accessed 5 May. 2023.
Schwartzapfel, Beth. “Unconstitutional “Jim Crow Juries” Locked Them Up. They’re Still in Prison.” The Marshall Project, 10 May 2022, http://www.themarshallproject.org/2022/05/10/their-sentences-are-unconstitutional-but-they-re-still-in-prison.
Simerman, John. “Nonunanimous Jury Ban Isn’t Retroactive, Louisiana Supreme Court Rules.” NOLA.com, http://www.nola.com/news/courts/nonunanimous-jury-ban-isnt-retroactive-louisiana-supreme-court-rules/article_3402a39e-5160-11ed-9a68-23fff2e618c1.html.
“Thompson v. State of Utah.” LII / Legal Information Institute, http://www.law.cornell.edu/supremecourt/text/170/343. Accessed 5 May 2023.
“Watkins v. Ackley.” Justia Law, law.justia.com/cases/oregon/supreme-court/2022/s068825.html. Accessed 5 May 2023.
