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RAMOS v. LOUISIANA: A MISSED OPPORTUNITY FOR THE EQUAL PROTECTION CLAUSE

By: Calder Holmes Lamb

I. FACTS AND HOLDING

II. BACKGROUND

A. THE SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AS APPLIES TO THE STATES THROUGH THE FOURTEENTH AMENDMENT

B. THE APODACA PROBLEM

C. RELEVANT LEGISLATIVE HISTORY OF LOUISIANA

III. THE COURT’S DECISION

A. THE MAJORITY OPINION

1. THE ANCIENT GUARANTEE OF A UNANIMOUS JURY VERDICT

2. MARKS DOES NOT APPLY

3. STARE DECISIS IS NOT ENOUGH

B. THE DISSENT

VI. ANALYSIS

A. RACIALLY MOTIVATED LAWS ARE PRESUMPTIVELY UNCONSTITUTIONAL

B. FORDICE CONTROLS AND LOUISIANA PERPETUATED RACIALLY DISCMINATORY POLICIES

V. CONCLUSION

For more than 120 years the State of Louisiana has functioned with a nonunanimous jury scheme, but in the 2018 case, Ramos v. Louisiana,[1] the Supreme Court of the United States ruled that nonunanimous jury schemes are unconstitutional.[2] In 1974 Louisiana ratified a nonunanimous jury scheme, codified in Article I, Section 17 of the Louisiana Constitution of 1974[3] and Article 782 of the Louisiana Code of Criminal Procedure.[4] At the time, the legislators stated that the jury scheme increased judicial efficiency;[5] however, Ramos, and its ilk have brought to the forefront the specter of invidious racism lurking in the background of the Louisiana Constitutional Convention of 1974.[6] The ensuing litigation culminated in the recent landmark Supreme Court decision Ramos v. State of Louisiana (“Ramos”).[7] In Ramos, a six-to-three majority found that the Sixth Amendment right to jury trial, as incorporated against the States by way of the Fourteenth Amendment, requires a unanimous jury verdict to convict a defendant of a serious offense.

This Note proposes that the Ramos majority should have ruled that the nonunanimous jury scheme of Louisiana was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment, rather than the Sixth Amendment because the Court’s own jurisprudence on the Equal Protection Clause has addressed the issues in Ramos. Section I of this Note discusses the facts relevant to the Court’s decision in Ramos. Next, Section II provides a background of the constitutional provision, congressional statutes, and case law relevant to understanding the issue of the Constitutionality of nonunanimous jury verdicts in the United States. Section III outlines the rationale used by the majority of the Court to find nonunanimous jury verdicts unconstitutional, as well as a discussion of Justice Alito’s dissenting opinion. Finally, Section IV analyzes the Ramos case under the Fourteenth Amendment’s Equal Protection Clause, and the jurisprudence relevant to Louisiana.

I. FACTS AND HOLDING

The Defendant, Evangelisto Ramos, was convicted in the Louisiana Criminal District Court, Orleans Parish, of second-degree murder based on a 10-to-2 jury verdict and was sentenced to life in prison without the possibility of parole. The Defendant appealed on the grounds that the trial court committed four errors. Error one was the Jackson standard of insufficient evidence to support a conviction; error two was that the State made improper comments during its opening statement; error three was that the defendant was convicted solely on racial profiling; and error four was that the trial court erred in denying the defendant’s motion to require a unanimous jury verdict.

Regarding the fourth error, that the trial court erred in denying the defendant’s motion to require a unanimous verdict, the defendant made the argument that La. Const. Art. I, Sec. 17,[8] and La. C.Cr.Pr art. 782[9] violate the Equal Protection Clause of the United States Constitution.[10] At the time, La. Const. Art. I, Section 17(A) provided that a case “in which the punishment is necessarily the confinement at hard labor shall be tried before a jury of twelves persons, ten of whom must concur to render a verdict,” and La. C.Cr.Pr. art. 782 held a jury to the same standard. The court of appeal relied on the Supreme Court of the United States’ decision in Apodaca v. Oregon in upholding the conviction.[11]

The court of appeal cited a Louisiana Supreme Court case, State v. Bertrand,[12] that handled the same challenge against ten-to-two, or nonunanimous, jury verdicts. In the Bertrand case, the trial court found that La. C.Cr.P. art 782(A) violated the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. On direct appeal, the Supreme Court of Louisiana held that Article 782 was constitutional, and based their opinion on the existing Supreme Court precedent set in Apodaca v. Oregon, which defended the nonunanimous jury system and was viewed by the Louisiana Supreme Court as commanding precedent on the issue.[13] The Defendant appealed to the U.S. Supreme Court and certiorari was granted.

The U.S. Supreme Court held that the Sixth Amendment’s term “trial by jury” carries with it a unanimous jury, and that the nonunanimous jury schemes of Louisiana and Oregon are unconstitutional under the Sixth Amendment and are incorporated against the States by way of the Fourteenth Amendment and reversed.

II. BACKGROUND

A. THE SIXTH AMENDMENT RIGHT TO A FAIR TRIAL APPLIES TO THE STATES THROUGH THE FOURTEENTH AMENDMENT

The U.S. Supreme Court “took [the Ramos] case to decide whether the Sixth Amendment right to a jury trial – as incorporated against the States by way of the Fourteenth Amendment – requires a unanimous verdict to convict a defendant of a serious offense.”[14] In order to understand the context, a short historical survey of the jury trial is instructive.

The Sixth Amendment promises that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”[15] However, the Amendment says nothing of what a “trial by impartial jury” entails.[16] In order to determine what “trial by an impartial jury” meant at the time of the Sixth Amendment’s adoption, the Court first looked to 14th century England, which was the genesis of the unanimous jury concept.[17] As Blackstone explained, no person could be found guilty of a serious crime unless “the truth of every accusation […] should […] be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to all suspicion.”[18] Further, “a verdict, taken from eleven, was no verdict” at all.[19]

Then, the Court looked to the state courts of the young United States, and all regarded unanimity as an essential feature of the jury trial at that time.[20] It was against this backdrop that James Madison drafted, and the States ratified, the Sixth Amendment in 1791. Finally, the Court looked to Justice Story’s Commentaries on the Constitution that stated, “in common cases, the law not only presumes every man innocent, until proven guilty; but unanimity in the verdict of the jury is indispensable.”[21] Historical precedent supported the demand of a unanimous jury trial, but what of the Court itself?

Throughout the years the Supreme Court has recognized that the Sixth Amendment requires unanimity. In 1898, the very same year of Louisiana’s Constitutional Convention, the United States Supreme Court stated that a defendant enjoys a “constitutional right to demand that his liberty should not be taken from him except by the joint action of the court and the unanimous verdict of a jury of twelve persons.”[22] Since then, the Supreme Court has repeatedly supported the right to a unanimous jury trial.[23] The Ramos Court confirmed this right when it firmly stated that there “can be no question […] that the Sixth Amendment’s unanimity requirement applies to state and federal criminal trials equally.”[24]

B. THE APODACA PROBLEM

In 1972, the U.S. Supreme Court confronted Louisiana’s and Oregon’s unconventional jury schemes for the first time in a pair of cases, Johnson v. Louisiana[25] and Apodaca v. Oregon.[26] In these two cases, the Court issued a set of fractured opinions in which four of the Justices wished to strike down the States’ laws, recognizing that the Sixth Amendment requires unanimity and that this guarantee is fully applicable to the States through the Fourteenth Amendment.[27] The four-Justice plurality took a different view; it deemed that the question before them was whether unanimity serves an important function in society.[28] The plurality concluded that unanimity’s “costs outweigh the benefits in the modern era, so the Sixth Amendment should not stand in the way of Louisiana or Oregon.”[29] The ninth and final member of the fractured Court, Justice Powell, concurred with the majority on the novel idea that a single legal right can mean two different things depending on whether it is being invoked against the federal or a state government.[30]

In the years following Johnson and Apodaca, both Louisiana and Oregon continued to allow nonunanimous jury verdicts. However, the U.S. Supreme Court has clearly rejected Justice Powell’s ‘duel-track’ argument, which was the basis of the Apodaca decision.[31] The rejection of Justice Powell’s argument caused Apodaca’s holding and precedential value to be questionable, leading to inconsistency in the law. The Court decided to grant certiorari in Ramos to cure this inconsistency and affirm the fundamental right of a unanimous jury for serious offenses.[32]

C. RELEVANT LEGISLATIVE HISTORY OF LOUISIANA

Louisiana is the focus of this Note; therefore, the history of the nonunanimous jury verdict in Louisiana is instructive. The nonunanimous verdict in Louisiana was created at the end of the post-Civil War era known as Reconstruction.[33] During this time, federal troops were withdrawn from the South and white Southerners began a series of reforms to limit the civil and legal rights of non-white citizens.[34] Besides casting votes, one of the primary areas of Black American participation was jury service.[35]

During Reconstruction, States across the South attempted to limit the participation of Black people on juries by enacting legislation, but the U.S. Supreme Court held that the States cannot categorically exclude individuals from jury service on the basis of race.[36] However, in 1896, the Supreme Court of the United States found Louisiana’s jury system did not violate the defendant’s Constitutional rights in Murray v. State of Louisiana, where a black man was sentenced to death by a jury of all white men. [37] Pressure began to mount against the Louisiana legislature in the years before the 1898 Constitutional Convention in Louisiana because the white population of Louisiana “took great issue” with Black American jury service, and demanded a political solution.[38]

The 1898 Constitutional Convention in Louisiana created nonunanimous verdicts as a compromise between the angry white population and the demands of the federal government.[39] Through a nonunanimous verdict and jury striking, the white population could effectively remove Black Americans from participation on a jury.[40] Louisiana legislators learned from the failures of other Southern States and avoided explicit racist language, but “instead had to find means of discrimination using facially-neutral language.”[41] An example of some of the facially race-neutral provisions adopted by the Convention in regards to jury striking included a poll-tax, a literacy test, and a property qualification.[42] Since many of these requirements also excluded many poor white people, a Grandfather Clause was adopted whereby if someone’s father or grandfather had voted in the election of 1867, none of the new restrictions applied.[43] More than 75 years later, Louisiana once again ratified the nonunanimous jury scheme in the 1974 Constitutional Convention in Louisiana.[44]

The Louisiana Legislature of 1974 adopted the new Constitution which codified the nonunanimous jury scheme in Article I, Section 17 of the Louisiana Constitution of 1974[45] and Article 782 of the Louisiana Code of Criminal Procedure.[46] During the Convention, Delegate Chris Roy argued that the nonunanimous system is discriminatory, especially against minority defendants, and that increasing the standard to ten-to-two would make the discrimination less significant.[47] The 1974 nonunanimous jury scheme in Louisiana stood until the U.S. Supreme Court ruled it unconstitutional and struck it down in Ramos.[48]

III. THE COURT’S DECISION

The U.S. Supreme Court delivered a fractured opinion in Ramos v. Louisiana, the majority relied upon the rulings of Apodaca,[49] Marks,[50] & Teague,[51] as well as expressions made by the Framers surrounding the formation of the Constitution.[52] Based on this analysis, the majority held in a six-to-three ruling that verdict by a nonunanimous jury on a serious offense is a violation of the Constitution. Justice Gorsuch penned the majority opinion, joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. Justice Thomas and Justice Kavanaugh penned concurring opinions, while Justice Alito filed a dissenting opinion and was joined by Chief Justice Roberts and Justice Kagan.

This section details the Court’s findings and analysis in Ramos. Subsection A discusses the majority’s rationale in ruling nonunanimous jury schemes unconstitutional. Subsection B then discusses Justice Alito’s dissenting opinion, which draws upon contrasting analysis of the relevant precedent and documents authored by the Framers to arrive at the conclusion that stare decisis demands the nonunanimous jury schemes be left undisturbed.

A. THE MAJORITY OPINION

1. THE ANCIENT GUARANTEE OF A UNANIMOUS JURY VERDICT.

Justice Gorsuch delivered the majority opinion of the Court concluding that the Sixth Amendment right to a jury trial, as incorporated against the States by way of the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense. The majority held that the Constitution’s text and structure clearly indicate that the Sixth Amendment term “trial by an impartial jury” requires unanimity.[53] Both the Sixth Amendment and Article III[54] include the right to a trial by an impartial jury. The Court viewed this repetition as evidence that the term “carried with it some meaning about the content and requirements of a jury trial. One of these requirements is unanimity.”[55] As examined previously in Part II, Subsection A of this Note, there is a long historical judicial precedent in common law for the unanimous jury requirement stemming from the 14th century,[56] and this tradition was carried by the young States during the formation of the United States.[57] The Constitutions of Louisiana and Oregon remained the only exceptions in the United States to the unanimous jury verdict standard.[58]

While the Court previously examined the nonunanimous jury scheme in Apodaca, the ‘duel-track’ reasoning for Justice Powell’s swing vote in the Apodaca holding has been repeatedly rejected by the Court.[59] Further, the majority states that Apodaca contains no precedent at all.[60] The best the State of Louisiana could argue was that all of the Court’s prior statements that the Sixth Amendment does require unanimity are dicta.[61] The Court’s problem with Apodaca is not the “skimpy” cost-benefit analysis, but rather that the Apodaca Court subjected the right of a unanimous verdict to a functionalist view, in which the right is flexible by the State.[62] Instead, the holding of the Court was to affirm that the right to a trial by jury “included a right to a unanimous verdict.”[63]

2. MARKS DOES NOT APPLY

Despite the precedent set in Marks v. United States, regarding plurality opinions,[64] the Ramos Court stated that Apodaca yielded “no controlling opinion at all” and that “both sides admit that Justice Powell’s opinion cannot bind us.”[65] Further, Marks never sought to offer or defend the idea that a single Justice’s opinion can overrule prior precedents.[66] Therefore, the Marks decision is undisturbed and does not apply in this instance.

3. STARE DECISIS IS NOT ENOUGH

Factors traditionally considered by the Court when determining whether to preserve precedent on stare decisis grounds do not favor upholding Apodaca. Stare Decisis is not “the art of methodically ignoring what everyone knows to be true,”[67] nor is it an “inexorable command.”[68] Further, “the doctrine is at its weakest when [the Supreme Court] interpret[s] the Constitution.”[69] Rather, the Court has weighed four factors when ruling on stare decisis issues: “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decisions; and the reliance on the decision.” [70]

In the instant case, no member of the Court in Ramos defended the Apodaca decision – indicating the poor quality of the decision.[71] The next two factors also fail because Apodaca’s consistency and legal development have been uncertain. The Court admits that Apodaca “sits uneasily with 120 years of preceding case law.” Further, the Court has abandoned the ‘duel-track’ system, and the decision flies against the laws of the remaining forty-eight States.[72] However, the last factor of reliance must be carefully considered by the court, because Louisiana and Oregon have relied on Apodaca for forty years.

However, the reliance interest in the security of final criminal judgments does not favor upholding Apodaca. Neither Oregon nor Louisiana claim “the prospective economic, regulatory, or social disruption litigants seeking to preserve precedent usually invoke.”[73] The Court recognized two instances of reliance interests. First, Louisiana and Oregon may need to retry defendants convicted of felonies by nonunanimous verdicts whose cases are still pending on direct appeal.[74] While the opposition stated a “tsunami” of litigation would occur, the Court was unpersuaded. The Court provided Booker v. United States as an example, which remanded 800 decisions to the courts of appeal.[75] The Court decided that the cases at issue in Louisiana and Oregon promise “to be less, and certainly nothing before us supports” the assertion that a wild disruption will occur.[76]

The second reliance interest involved the interest Louisiana and Oregon have in the security of their final criminal judgments.[77] The opposition worried that the defendants whose appeals are already complete might seek to challenge their nonunanimous convictions through collateral review. In response to this, the Court stated that “the worries outweigh the facts.”[78] The Court pointed to Teague v. Lane, which held that “newly recognized rules of criminal procedure do not normally apply in collateral review.”[79] The Court recognized that Louisiana and Oregon were about to, or had already “abolished” the nonunanimous jury verdict on their own; however, by making the instant decision, the Court cut off future states from using nonunanimous jury verdict schemes in the future.[80]

B. THE DISSENT

Justice Alito filed a dissenting opinion, which focused on the “rough treatment” of the stare decisis doctrine.[81] The dissent worried that if the majority’s approach became a pattern, then “the decision marks an important turn.”[82] The dissent stated that Louisiana and Oregon’s reliance upon Apodaca were well placed, the States tried “thousands” of cases, and in the years since the decision, “no Justice has even hinted” that Apodaca should be reconsidered.[83] Further, the dissent stated that there is little need for the Court to get involved today, as Louisiana and Oregon have effectively abolished the nonunanimous verdict on their own accord.[84]

The dissent took offense with the majority’s use of historical racism and past civil rights issues and insisted that these issues have nothing to do with the issues before the Court today.[85] To the dissenters, the origins of Louisiana and Oregon’s laws had nothing to do with the issues before the Court because they were State specific and “had no bearing” on the question of whether all States should be barred from nonunanimous jury schemes.[86]

The dissent holds that Apodaca did set a precedent, and to say otherwise is to say that “the entire legal profession was fooled for the past 48 years.”[87] Time and time again, this Court had reiterated what Apodaca established; thus, it must have precedential value.[88]

Finally, the dissent argued that the majority use of the Marks rule[89] actually worked against the three Member majority because the rule itself invalidates their opinion. Further, “nobody thought for a second that Apodaca committed the Court to Justice Powell’s view that the right has different dimensions in state and federal cases.”[90] For these reasons, the dissent asserted that Apodaca “clearly was a precedent” and if the Court wishes to be “done with it”, it must “explain why overruling Apodaca is consistent with the doctrine of stare decisis.[91]

IV. ANALYSIS

The Ramos Court did not sufficiently address the issue of the Fourteenth Amendment’s Equal Protection Clause specific to Louisiana and failed to recognize the Court’s own precedent that discriminatory intent during the construction of a law, like the discriminatory intent found in the 1898 Constitutional Convention in Louisiana, makes that law unconstitutional if the law is not “cleansed” of its discrimination. In Arlington Heights v. Metro. Housing Corp., the Court defined five factors that, if satisfied, will deem a facially race-neutral law unconstitutional. Further, in U.S. v. Fordice, the Court held that because the Mississippi legislature had not sufficiently “cleansed” a law that began with discriminatory intent, that law was deemed unconstitutional. Through the five-factor test outlined by Arlington Heights, and the discrimination “cleansing” test in Fordice, the Court already had the necessary jurisprudence to strike down nonunanimous jury laws. In Ramos, the Court missed an opportunity to strengthen the Equal Protection Clause at the State level, or at the very least – for Louisiana.

A. RACIALLY MOTIVATED LAWS ARE PRESUMPTIVELY UNCONSTITUTIONAL

Racially motivated laws are presumptively unconstitutional.[92] However, laws that are facially race-neutral will be deemed unconstitutional if one of the motivating factors in its adoption is racial discrimination.[93] In the case Arlington Heights v. Metro. Housing Corp., the Court held that five factors are used to determine if a facially race-neutral law was motivated by invidious racially discriminatory intent, in violation of the Fourteenth Amendment’s Equal Protection Clause: (1) the historical background of the enactment; (2) the sequence of events leading to the enactment; (3) the legislative history of the enactment; (4) statements by decision makers; and (5) the discriminatory impact.[94] When weighing these factors, the Court demands “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”[95] If a showing can be made that a law was passed with racial motivation and has a disparate impact, the burden shifts to the defender of the law to show that the law would have passed despite the racial impact.[96]

In Arlington Heights, the Court decided the case on the grounds that the challengers of the law had failed to prove racially motivated intent.[97] The instant matter is distinguishable on its facts from Arlington Heights. The racial motivations for the 1898 Louisiana conventioneers are apparent in the statement of E.B. Kruttschnitt, the President of the Convention:

We know that this 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 century degraded our politics … With a unanimity unparalleled [sic] in the history of American politics, they have intrusted [sic] to the Democratic Party of this State the solution of the question of the purification of the electorate. They expect that question to be solved, and to be solved quickly.[98]

Further, in the closing statement Thomas Semmes, the chair of the Judiciary Committee, stated the following:

[W]hen you eliminate the Democratic Party or Democracy of the State, what is there left but that which we came here to suppress? I don’t allude to the fragments of what is called the Republican Party. We met here to establish the supremacy of the white race and the white race constitutes the Democratic party of this State.

From these statements, and expert opinions offered by historians,[99] Louisiana satisfies the racially motivated intent that the Arlington Heights analysis demands, which means the original enactment of 1898 is unconstitutional under the Fourteenth Amendment’s Equal Protection Clause.

Additionally, in Hunter v. Underwood, the Supreme Court was asked to evaluate a section of the Alabama Constitution of 1901 that disenfranchised voters for misdemeanor crimes of “moral turpitude.”[100] The provision of the 1901 Constitution was substantially similar to that adopted in 1875, but the 1901 enactment expanded the number of crimes to be included.[101] The evidence was clear that the legislature enacted the 1901 provision because the new crimes were believed to be committed by African-Americans more than whites.[102] This indirect evidence was sufficient to establish a breach of the Equal Protection Clause as being motivated by racial animus.[103]

In the instant matter, the current policy is substantially similar to the original enactment of 1898. Further, nonunanimous jury verdicts continued to have a discriminatory impact in 2018.[104] As explained in the Arlington Heights analysis above, the original Louisiana enactment from 1898 was unconstitutionally motivated by race to have a discriminatory impact, and the current nonunanimous jury policy continues to have a discriminatory impact; therefore, under the Hunter analysis, the original nonunanimous jury scheme is unconstitutional.

B. FORDICE CONTROLS AND LOUISIANA PERPETUATED RACIALLY DISCMINATORY POLICIES

The analysis does not end with Arlington Heights and Hunter; the constitutionality of the current policy must also be considered. The Supreme Court of the United States has ruled on two cases whose holdings control the issue of the perpetuation of racially discriminatory policies, U.S. v. Fordice,[105] and Abbott v. Perez.[106]

In Fordice, the University of Mississippi had a de jure higher education system.[107] During the desegregation era, the system adopted a new ACT admission requirement policy for the universities.[108] However, there continued to be segregation because the requirements were not uniformly applied.[109] The Court determined that the new policy was traceable and rooted in the prior discriminatory policy, and race-neutral explanations failed to cleanse the enactment of its prior discriminatory intent, which caused the “new” policy to be struck down as unconstitutional.[110]

Following Fordice, in 2018 the case Abbott v. Perez decided voting rights dealing with Texas redistricting plans.[111] A 2011 redistricting plan that was adopted by the Texas legislature but was never allowed to go into effect by the federal district court.[112] The federal district court created and adopted a redistricting plan for 2012 use, which the Texas legislature adopted in 2013.[113] In 2017, the federal court again invalidated the redistricting plans adopted by the Texas legislature in 2013.[114] The Court held that the plans were based on the unenacted 2011 redistricting plan and the 2013 adoption had not cleansed the enactment of its racial motivation, which made the plan unconstitutional.[115] The case was then elevated to the U.S. Supreme Court. The Abbott court held, in pertinent part, that the State was not required to show that the “taint” of racial discrimination had been cleansed because there was no indication that the district court plans, adopted by the legislature, had been motivated by discriminatory intent since the plans came from the maps given to it by the district court.[116] The Supreme Court took pains to distinguish Abbott from the perpetuation of cases stemming from Fordice because the enactment in Abbott was not fairly traceable to any previous discrimination, since the legislature operated off of the maps given to it by the district court.[117] If a policy can be traced to a previously discriminatory enactment, the correct standard of review is that described in Fordice.[118]

As described above by the President of the Constitutional Convention,[119] the Louisiana 1898 nonunanimous jury scheme can be traced to discriminatory intent; therefore, the matter before the court today is similar to Fordice and distinct from Abbott. The 1974 provision is rooted in and fairly traceable to the provisions in the 1898, 1913, and 1921 Constitutions allowing for nonunanimous verdicts. It has already been conclusively established that the 1898 provision is unconstitutional under the Arlington Heights and Hunter jurisprudence. Further, the nonunanimous jury provisions in 1913 and 1921 were reenacted without debate or comment.[120] When Louisiana’s current jury scheme of 10-to-2 was being debated, even the delegates themselves acknowledged that moving from 10-to-2 rather than 9-to-3 would decrease discriminatory impacts, which shows that the Delegates were aware any scheme other than unanimous jury verdicts was, by its very nature, discriminatory.[121] Recognizing that nonunanimous jury verdicts are discriminatory, and then not curing the issue, is strong evidence that the 10-to-2 jury scheme has not been “cleansed” as required by Fordice, and therefore, should be ruled unconstitutional on the grounds of the Equal Protection Clause.

V. CONCLUSION.

The Court solidified the “ancient right” of a unanimous jury verdict at the State and Federal level; however, the Court missed an opportunity to recognize each individual’s rights at the State and Federal level, as defined by the Equal Protection Clause of the Fourteenth Amendment.

While this Note does not go into detail about the policies of Oregon, the policies of Louisiana were clearly rooted in the post-Reconstructionist South and could be traced back to their discriminatory intent, which was unfortunately not “cleansed” in the 1974 Constitution. While the Ramos dissent opines that the majority spent too much time on racial issues, it is worth stating that while stare decisis may not change, moral norms do. Certainly, the Court rightly upheld the right to a fair trial with a unanimous jury verdict, but an opportunity was missed to affirm the Individual’s rights to Equal Protection under the Fourteenth Amendment against the States.

  1. Ramos v. Louisiana, 140 S. Ct. 1390 (2020).
  2. Louisiana is the focus of this Note. While Oregon will be discussed in the Note due to the combination of cases, all other states, issues, and federal implications will be left to other works. Further, the focus of the background and analysis will be Louisiana centric.
  3. La. Const. Ann. art. I, § 17.
  4. La. Code Crim. Proc. Ann. art. 782.
  5. See Cong. Rec. 1019 (1898).
  6. Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana 374 (H. Hearsey ed. 1898); Eaton, The Suffrage Clause in the New Constitution of Louisiana, 13 Harv. L. Rev. 279, 286-287 (1899); Louisiana v. United States, 380 U.S. 145, 151-153 (1965).
  7. Ramos v. Louisiana, 140 S. Ct. 1390 (2020).
  8. La. Const. Ann. art. I, § 17.
  9. La. Code Crim. Proc. Ann. art. 782.
  10. U.S. Const. amend. XIV § 1 (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).
  11. Apodaca v. Oregon, 406 U.S. 404, 414 (1972) (Stewart J., joined by Marshall & Brennan, JJ., dissenting) (“The only relevant question here is whether the Sixth Amendment’s guarantee of trial by jury embraces a guarantee that the verdict of the jury must be unanimous. The answer to that question is clearly ‘yes,’ . . .’”), overruled by Ramos v. Louisiana, 140 S. Ct. 1390 (2020).
  12. State v. Bertrand, 2008-2215 (La. 3/17/09); 6 So. 3d 738 (holding that statute permitting nonunanimous 12-person jury verdict is constitutional).
  13. Id.
  14. Ramos v. Louisiana, 140 S. Ct. 1390 (2020).
  15. Ramos v. Louisiana, 140 S. Ct. 1390, 1395 (2020) (quoting U.S. Const. amend. VI); see also U.S. Const. art. III, § 2, cl. 3.
  16. U.S. Const. amend. VI.
  17. See J. Thayer, Evidence at the Common Law 86-90 (1898); W. Forsyth, History of Trial by Jury 200 (J. Morgan ed., 2d ed. 1875); 1 W. Holdsworth, A History of English Law 318 (rev. 7th ed. 1956); Smith, The Historical and Constitutional Contexts of Jury Reform, 25 Hofstra L. Rev. 377, 397 (1996).
  18. Blackstone, Commentaries on the Laws of England 379 (1769).
  19. Id.
  20. See e.g., Commonwealth v. Fells, 36 Va. 613, 614-615 (1838); Commonwealth v. Bowden, 9 Mass. 494, 495 (1813) (reporting that the jury was discharged because they could not reach consensus on a verdict, so another jury was convened to reach a unanimous verdict).
  21. Ramos v. Louisiana, 140 S. Ct. 1390, 1396 (2020) (quoting J. Story, Commentaries on the Constitution of the United States § 777, p. 248 (1833)).
  22. Thompson v. Utah, 170 U.S. 343, 351 (1898).
  23. See, e.g., Maxwell v. Dow, 176 U.S. 581, 586 (1900); Patton v. United States, 281 U.S. 276, 288 (1930); Andres v. United States, 333 U.S. 740, 748 (1948) (“Unanimity in jury verdicts is required where the Sixth and Seventh Amendments apply.”); Johnson v. Louisiana, 406 U.S. 356, 369 (1972) (Powell, J., concurring); United States v. Gaudin, 515 U.S. 506, 510 (1995); Richardson v. United States, 526 U.S. 813, 817 (1999); Apprendi v. New Jersey, 530 U.S. 466, 477 (2000); Southern Union Co. v. United States, 567 U.S. 343, 356 (2012); Blakely v. Washington, 542 U.S. 296, 301-301 (2004); United States v. Booker, 543 U.S. 220, 233-239 (2005); Descamps v. United States, 570 U.S. 254, 269 (2013);United States v. Haymond, 139 S. Ct. 2369, 2373 (2019) (plurality opinion).
  24. Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020).
  25. See Johnson v. Louisiana, 406 U.S. 356 (1972) (Stewart J., joined by Marshall & Brennan, JJ., dissenting) (“[T]he Fourteenth Amendment alone clearly requires that if a State purports to accord the right of trial by jury in a criminal case, then only a unanimous jury can return a constitutionally valid verdict. The guarantee against systematic discrimination in the selection of criminal court juries is a fundamental of the Fourteenth Amendment.”) overruled by Ramos, 140 S. Ct. 1390.
  26. See Apodaca v. Oregon, 406 U.S. 404 (1972) (Stewart J., joined by Marshall & Brennan, JJ., dissenting) (“The only relevant question here is whether the Sixth Amendment’s guarantee of trial by jury embraces a guarantee that the verdict of the jury must be unanimous. The answer to that question is clearly ‘yes,’ . . . ”) overruled by Ramos, 140 S. Ct. 1390.
  27. Ramos, 140 S. Ct. at 1397-1398.
  28. Id at 1398.
  29. Ramos, 140 S. Ct. at 1398 (citing Apodaca v. Oregon, 406 U.S. 404, 407 (1972) (discussing the Apodaca decision, where the Court held that the requirement of a unanimous jury verdict does not rise to “constitutional stature,” and therefore the Sixth Amendment does not apply). The “costs” that the Court is referring to are both the economic costs of retrying cases, and also the social cost of limiting the States’ powers. See Apodaca, 404 U.S. at 410-412.
  30. Johnson v. Louisiana, 402 U.S. 366, 369 (Powell, J., concurring) (“I do not think that all of the elements of jury trial within the meaning of the Sixth Amendment are necessarily embodied in or incorporated into the Due Process Clause of the Fourteenth Amendment.”).
  31. See, e.g., Timbs v. Indiana, 139 S. Ct. 682 (2019) (rejecting duel-track arguments against Indiana).
  32. Ramos, 140 S. Ct. at 1396.
  33. Aiello, Jim Crow’s Last Stand (updated ed. 2019).
  34. Aiello, Jim Crow’s Last Stand (updated ed. 2019).
  35. State v. Maxie, No. 13-CR-72522, p. 12 (La. 11th Jud. Dist., 10/11/18).
  36. Strauder v. W. Virginia, 100 U.S. 303, 304 (1879) (“The statute of West Virginia, which, in effect, singles out and denies to colored citizens the right and privilege of participating in the administration of the law, as jurors, because of their color, though qualified in all other respects, is, practically, a brand upon them, and a discrimination against them which is forbidden by the amendment.”), overruled by Taylor v. Louisiana, 419 U.S. 522 (1975).
  37. Murray v. Louisiana, 163 U.S. 101, 108 (1896) (finding no constitutional violation as there were African-Americans in the respective jury pools).
  38. State v. Maxie, No. 13-CR-72522, p. 14 (La. 11th Jud. Dist., 10/11/18) (The white population was worried that the black jurors would refuse to rule against black defendants and that the lack of education of the black jurors would disrupt the justice system in general).
  39. Id.
  40. Id. at 15.
  41. Id.; see Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana 374 (H. Hearsey ed. 1898).
  42. Aiello, Jim Crow’s Last Stand (updated ed. 2019).
  43. Id.
  44. State v. Maxie, No. 13-CR-72522, p. 14 (La. 11th Jud. Dist., 10/11/18).
  45. La. Const. Ann. art. I, § 17.
  46. La. Code Crim. Proc. Ann. art. 782
  47. Maxie, No. 13-CR-72522 at p. 20. The previous standard was 9-3, and Roy argued that 10-2 was less discriminatory. Id.
  48. Ramos v. Louisiana, 140 S. Ct. 1390, 1423 (2020) (holding that trial by jury in the Sixth Amendment includes a protection against nonunanimous felony guilty verdicts).
  49. Apodaca v. Oregon, 406 U.S. 404 (1972).
  50. Marks v. United States, 430 U.S. 188 (1977).
  51. Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion).
  52. See Ramos v. Louisiana, 140 S. Ct. 1390 (2020).
  53. Ramos, 140 S. Ct. at 1395.
  54. See U.S. Const. art. III, § 2.
  55. Ramos, 140 S. Ct. at 1395.
  56. Blackstone, Commentaries on the Laws of England 379 (1769).
  57. See, e.g., Commonwealth v. Fells, 36 Va. 613, 614-615 (1838); Commonwealth v. Bowden, 9 Mass. 494, 495 (1813) (reporting that the jury was discharged because they could not reach consensus on a verdict, so another jury was convened to reach a unanimous verdict).
  58. Ramos, 140 S. Ct. at 1396.
  59. See, e.g. Timbs v. Indiana, 139 S. Ct. 682 (2019) (rejecting duel-track arguments against Indiana).
  60. Ramos, 140 S. Ct. at 1399.
  61. Ramos, 140 S. Ct. at 1399-1401.
  62. Id. at 1401-1402.
  63. Id.
  64. Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds. . . .’”).
  65. Ramos, 140 S. Ct. at 1403.
  66. Id.
  67. R. Cross & J. Harris, Precedent in English Law 1 (4th ed. 1991).
  68. Pearson v. Callahan, 555 U.S. 223, 233 (2009).
  69. Agostini v. Felton, 521 U.S. 203, 235 (1997).
  70. Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485 (2019) (“The Court’s precedents identify a number of factors to consider, four of which warrant mention here: the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.”); see also Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018); United States v. Gaudin, 515 U.S. 506, 521 (1995).
  71. Ramos, 140 S. Ct. at 1405.
  72. Ramos v. Louisiana, 140 S. Ct. 1390, 1405 (2020).
  73. Id. at 1406.
  74. Id.
  75. United States v. Booker, 543 U.S. 220 (2005) (holding that the Sixth Amendment applies to federal sentencing guidelines, causing nearly 800 decisions to be remanded to the court of appeals).
  76. Ramos, 140 S. Ct. at 1406-1407.
  77. Ramos, 140 S. Ct. at 1407.
  78. Id.
  79. Teague v. Lane, 489 U.S. 288, 289 (1989) (affirming the Court of Appeals decision that held the petitioner could not benefit from the Batson rule because in the meantime Allen v. Hardy, 478 U.S. 255 (1986), had held that Batson could not be applied retroactively to cases on collateral review).
  80. Ramos, 140 S. Ct. at 1408.
  81. Id. at 1425.
  82. Ramos, 140 S. Ct. at 1425.
  83. Id.
  84. Id.
  85. Id. at 1426. (Alito, J., dissenting) (“Non-unanimous verdicts, the Court implies, are of a piece with Jim Crow laws, the poll tax, and other devices once used to disfranchise African-Americans. If Louisiana and Oregon originally adopted their laws allowing non-unanimous verdicts for these reasons that is deplorable, but what does that have to do with the broad constitutional question before us? The answer is: nothing.”).
  86. Ramos, 140 S. Ct. at 1426.
  87. Id.
  88. See Timbs v. Indiana, 139 S. Ct. 682, 687 n.1 (2019) (Apodaca held that “the Sixth Amendment requires jury unanimity in federal, but not state, criminal proceedings.”); McDonald v. Chicago, 561 U.S. 742, 766, n.14 (2010) (The Sixth Amendment “does not require a unanimous jury verdict in state criminal trials”); United States v. Gaudin, 515 U.S. 506, 511, n.2 (1995) (Apodaca “conclude[d] that jury unanimity is not constitutionally required”); Schad v. Arizona, 501 U.S. 624, 634, n.5 (1991) (plurality opinion) (“[A] state criminal defendant, at least in noncapital cases, has no federal right to a unanimous jury verdict”); Brown v. Louisiana, 447 U.S. 323, 330–331 (1980) (plurality opinion) (“[T]he constitutional guarantee of trial by jury” does not prescribe “the exact proportion of the jury that must concur in the verdict”); Burch v. Louisiana, 441 U.S. 130, 136 (1979) (Apodaca “conclude[d] that a jury’s verdict need not be unanimous to satisfy constitutional requirements”); Ludwig v. Massachusetts, 427 U.S. 618, 625 (1976) (findind that the “holding” in Apodaca was that “the jury’s verdict need not be unanimous”); see also Holland v. Illinois, 493 U.S. 474, 511 (1990) (Stevens, J., dissenting) (“[W]e have permitted nonunanimous verdicts”) (citing Apodaca v. Oregon, 406 U.S. 404, 413 (1972)); McKoy v. North Carolina, 494 U.S. 433, 468 (1990) (Scalia, J., dissenting) (the Court has “approved verdicts by less than a unanimous jury,” (citing Apodaca v. Oregon, 406 U.S. 404 (1972)).
  89. Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”).
  90. Ramos v. Louisiana, 140 S. Ct. 1390, 1431 (2020).
  91. Id. at 1431-1432.
  92. United States v. Carolene Products Co., 304 U.S. 144 n.4 (1938) (the famous footnote number 4, “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”) (citations omitted).
  93. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 274 (1977).
  94. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 274 (1977).
  95. Id. at 564.
  96. See also Hunter v. Underwood, 471 U.S. 222, 228 (1985) (“Although understandably no ‘eyewitnesses’ to the 1901 proceedings testified, testimony and opinions of historians were offered and received without objection. These showed that the Alabama Constitutional Convention of 1901 was part of a movement that swept the post-Reconstruction South to disenfranchise blacks. . . . The delegates to the all-white convention were not secretive about their purpose. John B. Knox, president of the convention, stated in his opening address: ‘And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State.’ 1 Official Proceedings of the Constitutional Convention of the State of Alabama, May 21st, 1901 to September 3rd, 1901, p. 8 (1940). Indeed, neither the District Court nor appellants seriously dispute the claim that this zeal for white supremacy ran rampant at the convention.”). The Court in Hunter held that a facially race-neutral law was motivated by invidious racial discrimination and was unconstitutional under the Fourteenth Amendment where that law continued to have a racially disparate impact despite technical amendments since adoption. Id.
  97. Vill. of Arlington Heights, 429 U.S. at 270-271.
  98. Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana 3 (H. Hearsey ed. 1898).
  99. See Aiello, Jim Crow’s Last Stand (updated ed. 2019); State v. Maxie, No. 13-CR-72522 (La. 11th Jud. Dist., 10/11/18).
  100. Hunter v. Underwood, 471 U.S. 222, 223 (1985).
  101. Id. at 227.
  102. Id.
  103. Id.
  104. Jeff Adelson et al., How an Abnormal Louisiana Law Deprives, Discriminates and Drives Incarceration: Tilting The Scales, The Advocate (Apr., 1, 2018, 8:01 AM), https://www.theadvocate.com/baton_rouge/news/courts/article_16fd0ece-32b1-11e8-8770-33eca2a325de.html (describing the continued discriminatory impact of nonunanimous jury verdicts in Louisiana).
  105. United States v. Fordice, 505 U.S. 717 (1992).
  106. Abbott v. Perez, 138 S. Ct. 2305 (2018).
  107. Fordice, 505 U.S. at 721-22. De jure segregation is the potentially discriminatory, mandatory separation of groups of people according to government-enacted laws. de jure, Merriam-Webster, https://www.merriam-webster.com/dictionary/de%20jure (last visited Jan. 23, 2021) (defining de jure, as in the context of de jure segregation, as “based on the laws or actions of the state”).
  108. Id.
  109. Fordice, at 734.
  110. Id.
  111. Abbott, 138 S. Ct. at 2305.
  112. Abbott, 138 S. Ct. at 2213.
  113. Id.
  114. Id.
  115. Id.
  116. Id.
  117. Abbott, 138 S. Ct. at 2214.
  118. Id. at 2745 (“[W]e are justified in not requiring proof of a present specific intent to discriminate. It is safe to assume that a policy adopted during the de jure era, if it produces segregative effects, reflects a discriminatory intent.”).
  119. Official Journal of the Proceeding of the Constitutional Convention of the State of Louisiana 3 (H. Hearsey ed. 1898) (“We know that this 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 century degraded our politics … With a unanimity unparalleled [sic] in the history of American politics, they have intrusted [sic] to the Democratic Party of this State the solution of the question of the purification of the electorate. They expect that question to be solved, and to be solved quickly.”).
  120. State v. Maxie, No. 13-CR-72522, p. 33 (La. 11th Jud. Dist., 10/11/18).
  121. State v. Maxie, No. 13-CR-72522, p. 20 (La. 11th Jud. Dist., 10/11/18).