Felony Convictions Require Unanimous Jury Verdicts, Rules SCOTUS—Shaming Oregon and Louisiana

    Until recently, two US states did not require a unanimous jury verdict to convict defendants at felony criminal trials: Louisiana and Oregon. In both, a “supermajority”—meaning only 10 or more jurors out of 12 voting guilty,—was sufficient to secure a conviction and a long sentence behind bars.

    Voters in Louisiana, a highly conservative state with the second-most prisoners in the nation, eschewed that system in favor of unanimity by ballot initiative in 2018. Oregon, despite its false reputation as a peaceable hippie paradise, was the stubborn holdout, which made sense for those familiar with the backwardness of its elected prosecutors.

    Now, the Supreme Court has made its stance clear with its April 20 ruling in Ramos v. Louisiana (2020). Unanimous verdicts are required under the Constitution, regardless of how many “convictions” have rested on 10-2 or 11-1 votes.

    If the recent past is an indicator, courts in both Oregon and Louisiana are now going to be swamped with demands for post-conviction relief and retrials. After the Supreme Court terminated the legality of mandatory life-without-parole sentences for children in 2016, thousands of people who are now adults were able to file for the second chance they thought they might never get. The courts found ways to manage, though progress is slower than advocates hoped for.

    Since Louisiana and Oregon are going to be inundated with new trial requests anyway, they should use this time as an opportunity for a “reset” of their criminal justice systems. That would mean taking ownership of how these systems have failed so many people, due to jury rules that were undeniably inspired by racism. It should also mean coming to terms with other ways in which these state criminal justice systems are uniquely problematic.

    Louisiana’s justice system is barbarically harsh toward even relatively minor criminal acts. After a young Black man tried to sell a bit of heroin to an undercover cop in Baton Rouge, he was sentenced to a 50-year term in prison. The judge lamented that he could not give life without parole to anyone who sells any amount of heroin, while District Attorney Hillar Moore, who falsely galivants as a “reformer” in the national speaking circuit, called the sentence “appropriate.” Derek Harris, a Black Gulf War veteran serving a life sentence for selling $30 of marijuana, is currently having his sentence reviewed by the Louisiana Supreme Court.

    The state’s non-unanimity rule made things even worse in cases such as these, because the standout juror in an overzealous or flimsy prosecution was not worth being persuaded by her peers in the jury box. That juror could be ignored without consequence.

    Oregonians might like to think they are better in this regard, as they live in a liberal state that talks up human rights. But a closer look shows that the actual practices of the state’s prosecutors bear closer comparison to the Deep South than most would expect. Like in Louisiana, elected District Attorneys there have imprisoned rape victims as “material witnesses” to their own rapes—a rare and outrageous extreme of victim-blaming.

    One Oregon prosecutor got a drunk driving conviction for a man in a motorized wheelchair who was hit by a truck. Another advocated that marijuana not be reclassified to Schedule II because of his belief that most people who smoke it abuse or neglect their children. The state’s most famous prosecutor, former Clatsop County, Oregon, District Attorney Joshua Marquis, once wrote a long-form article on his opinion that America’s troubling trend of wrongful convictions is no more than a clever media ruse. If Oregon’s incarceration rate is not up there with Louisiana’s, it is in spite of Oregon’s elected head prosecutors, not because of them.

    People might have avoided that fate, were it not for an illegal jury system maintained due to judicial convenience, tradition and prejudice.

    Supreme Court Justice Alito, who consistently fights to maintain deferential standards for law enforcement that the rest of the court finds dubious, is terrified of the work-related repercussions for judges in Oregon and Louisiana. For Alito, these arbiters of justice blamelessly relied on Apodaca v. Oregon and Johnson v. Louisiana, the decisions that Ramos overturned, in believing their non-unanimous verdicts were legal.

    Yet Alito’s interpretation would have us believe that the whole of the judiciary and political class of these two states has been blissfully aware of what the other 48 states have been doing—which we know is not true, due to challenges to these states’ jury systems for decades. Oregon and Louisiana took their chances with a constitutional gamble and now they have to pay the price.

    The judges are not the ones suffering in stone jail cells with squalid conditions, now facing a pandemic as punishment. Our pity should be reserved for the people who might have avoided that fate, were it not for an illegal jury system maintained due to judicial convenience, tradition and prejudice.

    Now, people convicted by illegal non-unanimous juries over the course of decades will be able to seek retrials. The new trials, while essential, will eat up funds that could have been used for improving schools, protecting the environment and other valuable purposes. This is entirely the fault of the state legislatures, judicial branches and elected prosecutors who knew that their corner-cutting would likely catch up with them.

    When taxpayers inevitably get angry at the expense, they should direct their protest toward these parties and demand that steps are taken to divert constitutional crises in the future. It should provide a powerful impetus to lock up fewer people in general.

    The best outcome, from here, would be for all criminal justice stakeholders to “lean in” to the chaos they created and see it as a once-in-a-generation opportunity to make things right in the system more broadly. That would mean tossing out the win-at-all-costs mentality that defines criminal prosecutions in both states.

    Unfortunately, given the track record and disproportionate influence of the district attorney lobbies in both Louisiana and Oregon, we can only expect a response similar to that of the rich man who buys a beach house in the middle of a current flood map. He knows his house will be destroyed by a hurricane or flood in the coming decades, but builds anyway because his immediate desire takes precedence. The severe reprimand to Oregon and Louisiana that the Supreme Court decision represents is similarly unlikely to prompt a wider rethink of the states’ approaches to constitutional rights.

    So let’s brace ourselves for these states’ inevitable, insidious moves to restrict the right to new trials that has just been created.


    Photograph of a jury box in Jackson County Courthouse, Texas by Patrick Feller via Flickr/Creative Commons 2.0.

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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