Ramos v. Louisiana and the Jim Crow Origins of Nonunanimous Juries

Ramos v. Louisiana, decided by the U.S. Supreme Court last Monday and summarized here, holds that the Sixth Amendment impartial jury guarantee gives defendants a right to a unanimous jury verdict in state trials. The case is making waves for reasons tangential to the dispute between the parties: in a dizzyingly split opinion, the justices argue more over the meaning of stare decisis (the court’s obligation to follow its prior holdings) than whether defendants in state courts may be convicted by a less-than-unanimous jury. This aspect of the opinion has been widely discussed (see analysis here, here, here, and here), and foreshadows the justices’ likely battle over an upcoming reproductive rights case. Since the divergent perspectives on stare decisis have been covered elsewhere, I will consider another issue that split the justices: the legal relevance of the nonunanimous jury law’s Jim Crow origins.

First, a pop quiz

Did North Carolina ever allow non unanimous jury verdicts in criminal trials? Read on for the answer.

The facts and procedural history of the case

Evangelisto Ramos was charged with a second-degree murder in New Orleans in 2014. He maintained his innocence and invoked his right to a jury trial. At the conclusion of the trial, ten jurors found Mr. Ramos guilty and two jurors found him not guilty. In the 48 states (including North Carolina) and federal court where all jurors must agree on a guilty verdict to convict a defendant, this would have resulted in a hung jury and a mistrial. Instead, because he was tried in Louisiana (before voters repealed the nonunanimous jury provision in 2019), Mr. Ramos was convicted and sentenced to life in prison without the possibility of parole. Appellate courts in Louisiana affirmed the conviction, relying on Apodaca v. Oregon, 406 U.S. 404 (1972), which had declined to extend the Sixth Amendment right to a unanimous jury to the states under the Fourteenth Amendment. The Supreme Court granted certiorari and reversed Mr. Ramos’s conviction.

Mr. Ramos’s Sixth Amendment challenge

Mr. Ramos asserted that the nonunanimous jury verdict violated his Sixth Amendment right to a unanimous jury. His argument rested on the historical and continued meaning of the Sixth Amendment right to a trial by an impartial jury, which provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury[.]” He argued that the impartial jury guarantee, at the time the Sixth Amendment was adopted in 1789, included the right to a unanimous jury verdict. Neither party disputed that the right to a unanimous jury verdict was central to the jury trial right at common law, dating back to 1367. See Douglas G. Smith, The Historical and Constitutional Contexts of Jury Reform, 25 Hofstra L. Rev. 377, 397 (1996). The U.S. Supreme Court has referenced that history on several occasions, at one point describing the common law right to a unanimous jury as so widely known that “[n]o authorities are needed to sustain this proposition.” Am. Publ’g Co. v. Fisher, 166 U.S. 464, 468 (1897). And the Supreme Court had already agreed that the purpose and effect of the impartial jury guarantee of the Sixth Amendment was to codify the common law meaning of the jury right, including the right to a unanimous verdict. See, e.g., Patton v. United States, 281 U. S. 276, 288 (1930). The only question before the Ramos court was the applicability of that aspect of the right to the states—whether the right was incorporated under the Fourteenth Amendment to bind states as well as the federal government. The biggest hurdle for Mr. Ramos to overcome was that the earlier decision, Apodaca, already answered this question in the negative.

Nonunanimous jury verdicts sound race-neutral: what’s race got to do with it?

Justice Gorsuch begins his opinion, in a portion joined by a narrow majority of the justices (Justices Breyer, Ginsburg, Sotomayor, and Kavanaugh), with a history lesson not on the Sixth Amendment but on nonunanimous juries in Louisiana. It is an ugly history, revealing a white supremacist backlash to the growing rights and political power of black people at the end of the nineteenth century. The move away from unanimous juries in Louisiana emerged in response to constitutional, statutory, and judicial efforts to secure the rights of black people to serve on juries through the adoption of the Fourteenth Amendment in 1868, the Civil Rights Act of 1875, and the U.S. Supreme Court’s decision in Strauder v. West Virginia, 100 U.S. 303 (1880) (holding that racial discrimination in jury selection compromises the right of trial by jury and violates the Equal Protection Clause). Justice Gorsuch explains that the nonunanimous jury provision originated in Louisiana’s 1898 constitutional convention, the purpose of which, according to one committee chairman, was to “establish the supremacy of the white race.” Ramos v. Louisiana, Slip. Op. at 2. Alongside other Jim Crow provisions intended to disenfranchise black people, including a poll tax and combined literacy and property ownership test, the nonunanimous jury provision targeted black people without explicitly naming this intent in its text. “With a careful eye on racial demographics, the convention delegates sculpted a facially race-neutral rule permitting 10-to-2 verdicts in order to ensure that African-American juror service would be meaningless.” Slip Op. at 2 (internal quotations omitted).

Justice Kavanaugh explains why nonunanimous jury provisions limit the influence of black jurors on the outcome of criminal trials:

Then and now, non-unanimous juries can silence the voices and negate the votes of black jurors, especially in cases with black defendants or black victims, and only one or two black jurors. The 10 jurors “can simply ignore the views of their fellow panel members of a different race or class.” Johnson v. Louisiana, 406 U. S. 356, 397 (1972) (Stewart, J., dissenting). That reality—and the resulting perception of unfairness and racial bias—can undermine confidence in and respect for the criminal justice system. The non-unanimous jury operates much the same as the unfettered peremptory challenge, a practice that for many decades likewise functioned as an engine of discrimination against black defendants, victims, and jurors. In effect, the non-unanimous jury allows backdoor and unreviewable peremptory strikes against up to 2 of the 12 jurors.

Slip Op. at 35 (Kavanaugh, J., concurring in part).

In 1974, Louisiana readopted its nonunanimous jury provision. Why? The justices don’t seem sure. Justice Gorsuch briefly concludes that “it’s hard to say why these laws persist”; Justice Kavanaugh speculates that the continued reliance on nonunanimous juries “may have been motivated by neutral principles (or just by inertia)”; and Justice Alito notes that the stated purpose of the nonunanimous jury provision in 1974 was judicial efficiency and, in the debate, “no mention was made of race.” Slip Op. at 3 (Alito, J., dissenting). But Justice Sotomayor observes that when it comes to old laws originally motivated by racial animus, it is often the case that “States’ legislatures never truly grapple[] with the laws’ sordid history in reenacting them.” Slip Op. at 33 (Sotomayor, J., concurring in part). She finds that Louisiana’s only effort to do so came not in 1974 but just last year, when Louisiana voters approved a 2019 referendum repealing the nonunanimous jury provision. The campaign for a unanimous jury right focused in part on the racist origins and continuing racially disparate outcomes of the nonunanimous jury law.

Raise your hand if you think that the Jim Crow origins of Louisiana’s nonunanimous jury provision is important to consider in this case

Not all nine justices think we should consider this history. Only five do. Four justices share Justice Gorsuch’s perspective that the racist history of Louisiana’s nonunanimous jury verdict law matters here. Concurring in most of Justice Gorsuch’s opinion, Justice Sotomayor writes separately to stress how important the Jim Crow history is to the invalidity of nonunanimous juries. Justice Kavanaugh also spends part of his lengthy concurrence discussing the significance of the racism that gave rise to nonunanimous juries. Justice Thomas ignores the Jim Crow history altogether, and Justice Alito, joined by Justice Kagan and Chief Justice Roberts, seems more offended by the majority’s audacity to observe that racism underpinned the nonunanimous jury provision than by the racism itself. Slip Op. at 62-66 (Alito, J., dissenting).

It may sound unremarkable that five justices in this case examine the racist history underlying Louisiana’s nonunanimous jury provision. In reviewing the constitutionality of a provision arising out of a white supremacist state constitutional convention, wouldn’t the Court have to reckon with that history? Certainly, if Mr. Ramos had raised an equal protection challenge to his nonunanimous jury verdict, the Court would have been squarely presented with the legal question of whether the nonunanimous jury provision was unlawful because it was motivated by a discriminatory purpose and had a discriminatory effect. But outside the equal protection context, the U.S. Supreme Court has marginalized the relevance of racist intent when such a consideration is not an essential element of a defendant’s legal claim, for example, when a traffic stop is challenged as racially motivated in violation of the Fourth Amendment. See, e.g., Whren v. United States, 517 U.S. 806, 813 (1996) (“[T]he Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”).

Why did a majority of the Court look so closely at this history in Ramos, and what exactly did they do with it? It is easy enough to note that five justices think that the racist origins of the law matter here and four justices apparently think they don’t. The more difficult question is how and why that history matters. How, if at all, does Jim Crow history influence the justices’ resolution of the legal questions before them in Ramos?

The answer is elusive. Justice Gorsuch highlights the racist origins of the law and criticizes the Apodaca plurality for ignoring that history, but in a footnote concedes that his discussion of Louisiana’s white supremacist constitutional convention is dicta, as nonunanimous juries would violate the Sixth Amendment impartial jury guarantee whether or not they were designed to diminish the influence of black jurors. Justice Sotomayor emphasizes that “the racially biased origins of the Louisiana and Oregon laws uniquely matter here,” but what does it mean legally to “matter”? Does the history matter because it serves as important context; because the Court has an ethical obligation to acknowledge painful aspects of our history (a “never again” perspective); or does it somehow factor into the resolution of the questions before the Court? She does not detail how the Jim Crow origins of Louisiana’s nonunanimous juries affect the Court’s analysis of the legal issues. She implies that an equal protection claim may have succeeded here, referencing the analogous case of United States v. Fordice, 505 U. S. 717, 729 (1992), which held that policies “‘traceable’ to a State’s de jure racial segregation and that still ‘have discriminatory effects’ offend the Equal Protection Clause.”

Justice Kavanaugh alone specifies how the origins of Louisiana’s nonunanimous juries influence the resolution of this case. He concludes that, once the court has determined that the correct resolution of the issues conflicts with a prior court holding (here, the Apodaca ruling), the court is more justified in departing from precedent when it has caused “significant negative jurisprudential or real-world consequences.” Slip Op. at 42 (Kavanaugh, J., concurring in part). The nonunanimous jury provision “tolerates and reinforces a practice that is thoroughly racist in its origins and has continuing racially discriminatory effects,” a significant negative consequence. This framework brings the Jim Crow history into the stare decisis analysis, not the determination of the scope of the Sixth Amendment right to a unanimous jury, or whether, under the Fourteenth Amendment, this right binds the states.

Why does the Jim Crow discussion feature so prominently? Is it easier for justices to confront vestiges of racism (a la Ramos) than to confront contemporary allegations of more widespread racial bias (a la Whren)? Or perhaps the justices are more likely to consider racism as relevant when ruling on Sixth Amendment challenges involving the right to a jury trial? Recently, in Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 867 (2017), the U.S. Supreme Court held that in cases involving evidence of racial bias in juror deliberations, the rule preventing the court from hearing juror testimony about statements made during deliberations must yield so that the court may consider whether the alleged racial bias violated the defendant’s Sixth Amendment right to a fair trial. That was not an equal protection case, but a case concerning the right to a fair and impartial jury, and the Court’s decision rested (as Justice Kavanaugh explains in Ramos) on a recognition of “the imperative to purge racial prejudice from the administration of justice generally and from the jury system in particular.” Id. at 13–14 (quoting Pena-Rodriguez and collecting cases). So, a working theory: when a defendant asserts a Fourth Amendment right, racial bias generally doesn’t matter, but when asserting a Sixth Amendment right, it might? Or maybe, as my colleague Shea Denning has considered and Justice Ginsburg has suggested, Whren was wrongly decided?

The bottom line here is that a majority of the court concluded that it is important to consider Jim Crow history when ruling on whether the unanimous verdict aspect of the Sixth Amendment right to a jury trial applies to the states. Although the justices in the majority do not agree on how this history factors into the analysis, the decision suggests that Jim Crow origins may support the invalidation of laws even outside of equal protection challenges.

What does this mean in states like North Carolina where jury unanimity was already guaranteed?

The holding in Ramos does not have immediate implications for North Carolina, where people accused of crimes already had a right to a unanimous jury. However, it raises interesting questions about the possibility that Jim Crow laws may have evolved into current law without careful examination or reconsideration. Kavanaugh asserts that the “nonunanimous jury is today the last of Louisiana’s Jim Crow laws.” (Slip. Op. Kavanaugh, J., concurring, at 48.) Assuming that this is true, what about in other states? What about here?

In 1898, the year of Louisiana’s constitutional convention, North Carolina saw similar white supremacist political activity, propaganda, and related violence, including the only successful political coup in United States history, in which white supremacists overthrew the city government of Wilmington, killing numerous black residents, forcing the resignation of the mayor, police chief, and aldermen, and burning down the headquarters of a black newspaper. Caleb Crain, City Limits: What a white-supremacist coup looks like, The New Yorker, April 27, 2020. As in Louisiana, “white supremacists went on to alter state law so as to disenfranchise black people[;]” while there were “more than a hundred and twenty-five thousand registered black voters in North Carolina in 1896 . . . only six thousand or so were still on the books by 1902.” Id. at 67. See also Thomas W. Frampton, The Jim Crow Jury, 71 Vanderbilt Law Review 1593, 1613-14 fns 118, 123, 124 (2019) (quoting articles published in 1898 and 1899 in the Semi-Weekly Messenger, a Wilmington newspaper, making white supremacist appeals for nonunanimous juries, one of which suggests that nonunanimous jury verdicts will reduce the need for lynchings). Are any of the laws passed in this era and motivated by this campaign of white supremacy still on the books?

The answer, almost certainly, is yes. Consider the North Carolina law making it a felony to vote when ineligible, even if the voter is unaware that he or she is ineligible to vote. This law dates back nearly unaltered to this same political effort to disenfranchise black voters around the turn of the twentieth century. Are there others? Some aspects of jury selection, including the use of peremptory strikes, have been historically entangled with discrimination. See April Anderson, Peremptory Challenges at the Turn of the Nineteenth Century: Development of Modern Jury Selection Strategies as Seen in Practitioners’ Trial Manuals 16 Stan. J. C.R. & C.L. 1 (2020). Historians at UNC are working on documenting North Carolina’s Jim Crow Laws, which may help identify others still in operation.

Justice Sotomayor’s concurrence in Ramos cautions that we may be governed by dated laws, in North Carolina and elsewhere, that have been reenacted or maintained without meaningful consideration of their Jim Crow origins and purpose. At least some of our legal architecture is built on the same troubling historical foundations described in Ramos. The splintered Ramos opinion does not provide a roadmap for resolving legal challenges related to Jim Crow laws—outside the usual equal protection approach—but a majority of the justices insist that this history cannot be ignored.

About that pop quiz

Yes, North Carolina briefly allowed non-unanimous jury verdicts in the 17^th century. See Williams v. Florida, 399 U.S. 78, 98 n.45 (1970). I don’t know what motivated the adoption of nonunanimous juries in North Carolina or the return to unanimity. If you know more about this history, please leave a comment, and of course, feel free to comment on any other issues raised by the Ramos decision.