By Becky Wasserman
Associate Editor, Vol. 25
Ten out of twelve jurors. That’s all it takes in the State of Oregon to convict a person accused of a crime. Before 2018, Louisiana also permitted non-unanimous jury verdicts in criminal trials. Now, Oregon is the last remaining state to allow non-unanimous jury verdicts. On October 7, 2019, the United States Supreme Court heard oral arguments for the case Ramos v. Louisiana. The outcome of this case will determine the constitutionality of non-unanimous jury verdicts in state criminal cases. More specifically, it will determine whether the Sixth Amendment’s guarantee of a unanimous jury verdict in federal criminal cases extends to the states. The Supreme Court should rule in favor of incorporating the unanimity requirement against the states.
Neither Louisiana nor Oregon stumbled upon their non-unanimous jury provisions by accident. Both states intentionally altered their state constitutions to perpetuate white supremacy. In response to the ratification of the Fourteenth Amendment and Supreme Court ruling in Strauder v. West Virginia, Louisiana sought to render black jurors powerless by adopting a non-unanimous jury rule. The explicit purpose of the 1898 Louisiana constitutional convention was to “establish the supremacy of the white race in this State” and suppress the civic participation of the black community. Based on the percentage of black people in Louisiana at the time, Louisiana legislators opined that it “would be highly unlikely that any jury would ever have more than three African Americans and therefore their service would be silenced” by a non-unanimous jury law.
Decades later, Oregon adopted a non-unanimous jury rule that similarly stemmed from anti-immigrant xenophobia, racism, and religious bigotry. During the famous murder trial of Jacob Silverman, a Jewish man accused of killing a Protestant, a jury of twelve spared Mr. Silverman the death penalty and convicted him of manslaughter because of a single juror who would only agree to manslaughter charges. In response to the anti-Semitic public reaction, Oregon legislators amended the Oregon constitution in 1934 to allow non-unanimous criminal jury verdicts.
How have these two states continued to convict defendants without unanimous juries even though it is constitutionally impermissible to do so in federal courts? Over time, the Supreme Court has incorporated most of the Bill of Rights to apply to the states through the Fourteenth Amendment. The Sixth Amendment unanimous jury requirement, however, remains one of the few unincorporated rights.
In the 1972 Supreme Court case Apodaca v. Oregon, four justices believed that the Sixth Amendment right to a jury trial for criminal cases did not include the protection that the verdict be unanimous, either in federal or state court. Four dissenting justices believed just the opposite: the Sixth Amendment requires jury unanimity and this requirement applies to both federal and state courts. Out of this splintered decision, Justice Powell’s concurring opinion became binding precedent. Justice Powell stated that the Sixth Amendment guarantees a right to a unanimous jury when applied to federal trials but does not extend to state trials. Many scholars have criticized Apodaca for resting on a single idiosyncratic concurring decision that relies on a theory of incorporation that has since been discredited.
In addition, social science research conducted since Apodaca “has found that a unanimous jury requirement strengthens deliberations, reduces the frequency of factual error, fosters greater consideration of minority viewpoints, and increases confidence in verdicts and the criminal justice system.” Without a unanimity requirement, juries are more likely to adopt a “verdict-driven deliberation style” over an evidence-driven style. With a verdict-driven deliberation style, jurors stop deliberating as soon as a minimum consensus for a guilty verdict is reached and can ignore minority viewpoints in the process. Not only does this silence minority voices on juries, it also risks increased conviction rates, including wrongful convictions.
This term, the Supreme Court will revisit the Apodaca decision in Ramos v. Louisiana and consider again whether the Fourteenth Amendment fully incorporates the Sixth Amendment’s guarantee of a unanimous jury verdict to the states. In June of 2016, Evangelisto Ramos was found guilty of second-degree murder by a jury verdict of 10-2 in Louisiana and sentenced to life in prison without the possibility of parole. In 2018, Louisiana voters passed Amendment 2, which altered their state constitution to require unanimous jury verdicts for offenses committed on or after January 1, 2019. However, the upcoming decision remains relevant for people in Louisiana like Mr. Ramos who were convicted by a non-unanimous jury verdict before 2019 and for defendants in Oregon.
At oral argument on October 7, 2019, Jeffrey Fischer represented Mr. Ramos and Elizabeth Murrill represented Louisiana as its solicitor general. Mr. Fischer argued that unanimity is a central right of Sixth Amendment and should equally apply to the states. He offered support from common law, from the Founders’ original intent in drafting the Sixth Amendment, and from the history and purpose of the Fourteenth Amendment. Additionally, Mr. Fischer persuasively emphasized that requiring unanimity promotes more thoughtful jury deliberation and strengthens the constitutional guarantee that juries represent a cross-section of the community. Ms. Murrill conceded that Powell’s concurrence in Apodaca made little sense and argued that the federal and state trials should be treated the same—without a unanimous jury requirement for either type of trial. While the Justices critiqued Ms. Murrill’s argument for a variety of reasons, Justice Kavanaugh was the only one to mention the racist history of Louisiana’s law as a concern.
With Ramos v. Louisiana, the Supreme Court should take the opportunity to overrule Apodaca and finally ensure that defendants in all states receive the constitutional protections guaranteed in the Sixth Amendment. By ensuring that the unanimity requirement extends to the states, our country would take one important step in addressing the systemic racism that plagues our criminal justice system and impacts people like Mr. Ramos. With a unanimity requirement, the voices of all twelve out of twelve jurors will matter.
 OR. CONST. art. I, § 11. Oregon only requires a unanimous guilty verdict for first degree murder, nothing else. Id.
 German Lopez, Louisiana votes to eliminate Jim Crow jury law with Amendment 2, Vox (Nov. 6, 2018, 10:41 PM), https://www.vox.com/policy-and-politics/2018/11/6/18052540/election-results-louisiana-amendment-2-unanimous-jim-crow-jury-law.
 Ramos v. Louisiana, No. 18-5924 (U.S. argued Oct. 7, 2019).
 Strauder v. West Virginia, 100 U.S. 303 (1880) (declaring it unconstitutional for states to exclude people from jury service on the basis of race).
 See Brief for American Civil Liberties Union & the ACLU Foundation of Louisiana as Amici Curiae Supporting Petitioner at 2, Ramos v. Louisiana, No. 18-5924 (2019).
 Id. at 24.
 Id. at 28.
 Aliza B. Kaplan & Amy Saak, Overturning Apodaca v. Oregon Should Be Easy: Nonunanimous Jury Verdicts in Criminal Cases Undermine the Credibility of Our Justice System, 95 Or. L. Rev. 1, 3-4 (2017).
 Id. at 3.
 Id. at 2-3.
 Id. at 21.
 Apodaca v. Oregon, 406 U.S. 404, 406 (1972).
 Id. at 414.
 See Johnson v. Louisiana, 406 U.S. 366, 368 (1972).
 Kaplan & Saak, supra note 8, at 21 (“The Supreme Court’s 2010 decision in McDonald v. City of Chicago unambiguously rejected the concept of a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights,’ that would allow different standards between the states and the federal government for the protection of fundamental rights.”).
 Brief of Law Professors and Social Scientists as Amici Curiae Supporting Petitioner at 2, Ramos v. Louisiana, No. 18-5924 (2019).
 Kaplan & Saak, supra note 8, at 33-34.
 See id.
 Id. at 37.
 State v. Ramos, 231 So. 3d 44, 46 (La. App. 2017).
 Lopez, supra note 2.
 Ramos, No. 18-5924, at 4.
 Id. at 3-4, 27.
 Id. at 17.
 Id. at 34.
 Id. at 26.