One thing every defendant in a criminal trial in America can count on is the right to a jury trial. It’s written in the Constitution.
But does that mean the defendant also has a right to demand a unanimous jury vote to convict?
As with so much of American law, it depends on whom you ask. In 1972, when that question was put before the U.S. Supreme Court in the case of Apodaca v Oregon, a narrow 5-4 majority of the justices said no. A non-unanimous vote sending someone to prison was alright with them.
But in 2020, the same question was asked again, and this time the Supremes ruled in the case of Ramos v Louisiana that juries must be unanimous to convict defendants in criminal trials.
The 6-3 vote defied the usual ideological splits. The majority included liberals Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayo, and conservatives Clarence Thomas, Brett Kavanaugh and Neil Gorsuch. Gorsuch wrote the majority opinion, emphasizing the racist roots of the idea of non-unanimous jury verdicts in the only two states affected by the decision — Oregon and Louisiana. All the other states and the federal courts have long required unanimous verdicts.
The minority opinion, written by the conservative Samuel Alito and cosigned by Chief Justice John Roberts and the liberal Elaine Kagan gave two reasons for their opposition: precedent was being overturned and “a potentially crushing burden” was being imposed “on the courts and criminal justice systems of those States.”
Writing for the majority, Justice Gorsuch torched both of Alito’s arguments:“Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory,” Gorsuch wrote. “But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.”
One potential consequence was the possibility of retrials for 1500 prisoners convicted in Louisiana by non-unanimous verdicts, 80 percent of whom are African-American males, since their Constitutional rights had been violated by their convictions.
In 2021, the Supreme Court thought that over and decided their Ramos v. Louisiana decision would apply only to present and future cases. Louisiana and Oregon could make the Constitutional protection retroactive — if they wanted to — but it was up to them.
The Attorney General of Oregon, who had asked for the 2021 reconsideration of the 2020 decision, promised after she’d won her point, to reinvestigate the cases of everyone still imprisoned by non-unanimous verdicts. The AG of Louisiana made no such promise. Instead Jeff Landry Tweeted in defense “long-final convictions involving rape, murder, child molestation, and other violent crimes.” The Supreme Court’s revision, he said, “is a victory for Louisiana crime victims.”
But what about the Constitutional rights of those 1500 Louisianians still in prison?
Jeremy Young is the Senior Investigative Producer for Al Jazeera based in Washington, DC. He told Brandon Jackson’s story on Al Jazeera’s Faultlines.