Last year, Louisiana voters rejected the state’s nearly singular practice of allowing criminal convictions from divided juries. By a decisive 64-36 margin, they said that the rule, rooted in the Jim Crow past and an apparent factor in unequal outcomes into the present, should change.
That settled the matter for cases starting in 2019, but it left for another day the question of whether non-unanimous verdicts for past crimes should stand. That day arrived on the first Monday in October, when the U.S. Supreme Court heard arguments over whether the 10-2 conviction of Evangelisto Ramos for a 2014 New Orleans murder was constitutional.
That the justices took up the case at all is one sign that they find split verdicts, until recently only allowed in Louisiana and Oregon, suspect. Another came during the hearing, in which the lawyer defending the state faced tough questions.
We share the justices’ skepticism. This paper supported the 2018 Louisiana constitutional amendment requiring unanimity going forward, following an investigative series that found the provision was introduced to minimize the voices of African-American jurors and that black defendants are more likely to be convicted by non-unanimous juries. The same concerns undermine verdicts secured under those rules.
The underlying legal argument centers on the Sixth Amendment guarantees of defendants’ rights at trial, which do not explicitly include the right to a unanimous jury but have long been understood that way. Many federal protections have been incorporated to cover state law, and Ramos’ attorney argues that the right to a unanimous verdict should be, too.
In the high court’s most recent ruling, handed down in 1972, four justices found that there’s no right to a unanimous jury, four argued that there is for both state and federal trials, and a single justice found that such a right exists at the federal level but not for state charges. The state relied on that precedent in defending the status quo.
But several justices voiced doubts.
Justice Sonia Sotomayor noted that Alexander Hamilton said of the right to a unanimous jury that “it’s so self-evident, we don’t need to include it” in the Bill of Rights. Justice Brett Kavanaugh noted that the old rules were enacted "in a desire, apparently, to diminish the voices of black jurors in the late 1890s." Justice Neil Gorsuch questioned the wisdom of preserving “an incorrect view of the United States Constitution” to avoid complications from the court reversing its prior view and opening old cases to retroactive scrutiny.
Such a change would indeed be messy, and could reopen old wounds. Appeals under such a ruling would be complicated by the fact that, in many cases, there are no records of how jurors voted.
We don’t take those concerns lightly, but find they don’t hold up against the bedrock principle of fairness. Like last year’s amendment, we don’t think this is a close call.