It’s not often that the Supreme Court gets the chance to strike down a Jim Crow law these days, but one such opportunity is fast approaching. This fall, the justices will hear Ramos v. Louisiana, a case involving the Sixth Amendment right to a trial by a jury of one’s peers. In almost every state in the Union, those peers must unanimously agree to convict someone of a serious crime. But two states have bent this rule, enabling juries to convict a defendant even if one or two jurors thinks they aren’t guilty.
The court previously blessed the arrangement in an unusually splintered opinion in 1972. But concerns about that ruling’s validity, and the marked racial disparities observable in its current practice, have brought it back to the justices’ attention.
Many states allow non-unanimous verdicts for misdemeanors and less serious crimes. Louisiana and Oregon stand alone when it comes to letting ten out of twelve jurors decide a defendant’s fate for felony offenses. These two states—the only ones to ever adopt this practice—are beseeching the court to uphold the status quo, and have filed briefs urging the court to abide by its usual rules of stare decisis, leaving precedents intact. That is a weighty argument, especially in the Roberts Court era. But it is wholly unpersuasive when applied to the history and practice at hand in this case.
Challenging the practice is Evangelisto Ramos, a Louisiana man who was convicted of murdering Trinece Fedison in 2015. The case against Ramos was anything but clear-cut. There were no eyewitnesses to the fatal stabbing, and detectives found neither the murder weapon nor any other physical evidence of his involvement. The only links to Ramos were circumstantial: He had been a recent sexual partner of Fedison, and his DNA matched one of many different samples taken from the trash can into which her body had been stuffed. Ramos told police he had touched the trash can when he took out the garbage from the church that owned it.
After a two-day trial, the jury failed to reach a unanimous verdict. Two members voted not to convict Ramos, apparently unsatisfied that the prosecution had proven its case beyond a reasonable doubt. That would have been enough to set Ramos free in 48 other states at the time. In Louisiana, it was enough to find him guilty of second-degree murder. He was later sentenced to life without parole. Ramos quickly appealed the verdict by arguing that Louisiana’s non-unanimous jury rule violated his federal constitutional rights.
Ramos is hardly alone. “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.”
Contrary to popular belief, it is not a relic of Louisiana’s Napoleonic legal origins. The rule instead dates back to the state’s 1898 constitutional convention, where white Bourbon Redeemers enshrined measures to preserve racial apartheid in the state. (Louisiana voters scrapped the provision in a ballot initiative last November, but it did not apply to past convictions like Ramos’s.)
“The Convention’s official record is replete with references to its racist goals,” the NAACP told the court in a brief. “In his opening remarks, Convention President Ernest Kruttschnitt stated that the ‘convention has been called together by the people of the State to eliminate from the electorate the mass of corrupt and illiterate voters who have during the last quarter of a century degraded our politics.’ 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 . . . .’”
Jim Crow laws, like links of chain mail, work best when woven together. Louisiana’s jurors at the time were selected exclusively from the state’s voter rolls. “The new constitution would include a literacy test, a three-hundred-dollar property requirement, a poll tax, and proof of two years’ paid taxes as requirements for the franchise,” Aiello wrote. “It also included a grandfather clause to cover poor, illiterate whites who couldn’t meet the new constitutional standard. In 1897, a year before the new constitution took effect, there were 130,344 registered black voters. By 1900, there were 5,320. By 1922, there were only 598.”
Oregon also adopted its version of the rule under troubling circumstances. In 1933, a Portland jury failed to convict Jake Silverman, a Jewish immigrant and alleged gangster accused of murdering a man and woman, after a single juror held out on the murder charge. Silverman instead received a three-year sentence for manslaughter. The result sparked public outrage in an age of nativism and anti-Semitism, including rumors that the holdout had themselves been Jewish.
“This newspaper’s opinion is that the increased urbanization of American life ... and the vast immigration into America from southern and eastern Europe, of people untrained in the jury system, have combined to make the jury of twelve increasingly unwieldy and unsatisfactory,” The Morning Oregonian wrote in an editorial shortly after the trial.
Oregon lawmakers, responding to the uproar, responded by drafting a constitutional amendment to allow felony convictions on a 11–1 or 10–2 vote. It received the voters’ assent in 1934 with 59 percent in favor of it. It would be another three decades before the provision came before the Supreme Court.
Over the past century, the justices have used the Fourteenth Amendment to apply the Bill of Rights’ protections against federal abuses to the states. Last term, for instance, the court ruled that the Eighth Amendment’s ban on excessive fines applies when states like Indiana try to seize its residents’ cars for minor drug offenses. This process, known as incorporation, means that there is now little daylight between how the Bill of Rights affects state and federal power.
The court incorporated the Sixth Amendment right to a jury trial in 1968. But in the 1972 case Apodaca v. Oregon, the court, in a 5–4 decision, upheld Oregon’s non-unanimous conviction rule. The decision was far from clean. Four of the justices strongly rejected the defendant’s arguments; four of them voted to strike down the Oregon provision. Justice Lewis Powell provided a fifth vote in Oregon’s favor to resolve the case.
Powell did not join the plurality’s opinion, however. Instead, he wrote a narrower concurring opinion laying out his own views on the matter. “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. Under the Supreme Court’s precedents, the narrowest opinion in the majority is considered to be the controlling one for lower courts to follow.
The Supreme Court is typically reluctant to overturn its own precedents. But Ramos contends that the splintered outcome should weaken its grip on the justices today. “To be sure, Justice Powell’s decisive opinion in Apodaca balked at requiring the states to abide by the Sixth Amendment’s unanimity requirement,” his lawyers wrote in their brief for the court. “But this vote need not be accorded stare decisis weight because all eight other Justices in the Court’s splintered ruling disagreed with Justice Powell.”
Ramos argues that unanimity is vital to a jury’s proper functioning. “If one or two jurors harbor doubt about the prosecution’s theory or questions regarding the adequacy of defense counsel’s efforts, they may effectively require the others to engage in discussion,” his lawyers told the court. Transforming juries into a mere straw poll, on the other hand, runs counter to both popular expectations and its constitutional role. “To illustrate the point by way of a cultural touchstone: Without the unanimity rule, the play Twelve Angry Men would have ended on page eleven,” they wrote.
Louisiana is not the same state that it was in 1898, but the shadow of the past still looms over the system. Using data from investigative journalists, Harvard University law professor Thomas Frampton found evidence of significant racial disparities in the way Louisiana’s non-unanimity rule functions in practice. While black jurors accounted for 31 percent of the votes cast in the cases at hand, he wrote in a Vanderbilt Law Review article in 2018, they cast 51 percent of the votes that didn’t count under the non-unanimity rule.
The rule not only diminishes the ability of black jurors to influence the system, it makes it harder for black defendants to avoid convictions. “In the 28 non-unanimous convictions in Orleans Parish for which data is available, for example, white jurors and black jurors served in roughly equal numbers,” Frampton wrote. “Yet black jurors cast more than twice the number of ‘empty votes’ for acquittal than did white jurors.” That gap has consequences. “When a conviction is obtained against a black defendant, there is a 43% chance that the verdict was non-unanimous,” he wrote. “When the convicted defendant is white, there is only a 33% chance the verdict was non-unanimous.”
Louisiana disputes Ramos’s interpretation of Apodaca and the Sixth Amendment. But it also leans heavily on the practical consequences of a ruling in his favor. “Overturning Apodaca, moreover, would lead to significant practical problems and would unsettle related areas of the law,” the state told the court. “The ink will not even be dry on this Court’s opinion before the lower courts begin receiving thousands of petitions for habeas relief seeking to apply a mandatory unanimity rule retroactively to long-final convictions in Louisiana and Oregon.”
Oregon chimed in with an equally dire warning. “Oregon courts have given a non-unanimous jury instruction in almost every single felony jury-trial case for the past 47 years,” the state said in its brief to the court. “Tens of thousands of jurors have followed those instructions in carrying out their deliberations. If this court were to overrule Apodaca, it would invalidate convictions in hundreds if not thousands of cases.” A coalition of states led by New York dispute that claim, however, noting that the Supreme Court’s rules in other cases make it hard for defendants to obtain retroactive relief.
The two states have it right, but the wrong way around. What’s more troubling than the prospect of retrials is the possibility that Louisiana and Oregon sentenced thousands of people to prison who might have gone free if dissenting jurors’ voices had mattered. This was not an accident or a flaw in the system; it was by design. There’s been plenty of scrutiny in recent years on how the Roberts Court respects precedents. In this instance, the precedent isn’t worth the respect.