Most Americans – including those who have seen the film “12 Angry Men” – probably assumed that the U.S. Constitution requires that juries be unanimous in order to convict someone of a major crime. But that wasn’t true until Monday, when the U.S. Supreme Court, reversing a shaky precedent, ruled that unanimity is required in state as well as federal courts.
The court ruled in favor of Evangelisto Ramos, who was convicted in 2016 by a 10-to-2 vote in the murder of a woman whose body was found in a New Orleans trash can. Louisiana now requires unanimous jury verdicts for serious crimes, but Oregon continues to allow non-unanimous verdicts in felony cases. After Monday’s decision, no state will be able to convict people of serious crimes by less than unanimous juries.
Given that only one state now allows non-unanimous verdicts, the court’s decision might not seem all that momentous.
That’s wrong for two reasons.
First, had the court ruled the other way, “law and order” advocates in other states might have lobbied their legislatures to allow non-unanimous verdicts. There are precedents for such a chain reaction, notably the move by several states to weaken the insanity defense after a jury found John W. Hinckley Jr., who attempted to assassinate President Ronald Reagan, not guilty by reason of insanity. (Alas, the Supreme Court ruled last month that the traditional insanity defense was not required by the Constitution.)
Juries may reach a verdict more quickly if they needn’t be unanimous, but (as “12 Angry Men” dramatizes) the requirement that all jurors agree makes it likelier that juries will deliberate carefully and explore all possibilities. Unanimity promotes impartiality.
Second, this ruling is important because it continued a trend in which the court has held that protections in the Bill of Rights that originally applied only to the federal government also apply to actions by state governments.
Legal nerds know that this process is called “incorporation”: a reference to the court’s holding that some, but not all, rights specified in the Bill of Rights are incorporated against the states by the 14th Amendment, which was added to the Constitution after the Civil War. That amendment mandates that people not be deprived of liberty without due process of law and also refers to the “privileges or immunities” of citizenship.
It long has been understood that the First Amendment’s guarantees of free speech and freedom of religion as well as the Fourth Amendment’s ban on unreasonable searches and seizures are incorporated against the states. But it was only in 2010 that the court ruled that the states were bound by the court’s (then recent) interpretation of the Second Amendment’s right to keep and bear arms.
Monday’s ruling concerned another provision of the Bill of Rights, the Sixth Amendment. It guarantees a criminal defendant the right to trial by an impartial jury, but doesn’t specify that the verdict must be unanimous. Writing for the court, Justice Neil Gorsuch said that the unanimity requirement that he said lay behind the history of the Sixth Amendment must also apply to state trials. The decision overrules a shaky 1972 precedent in which a fractured court seemed to say that unanimous juries were required in federal trials but not state trials.
This decision doesn’t mean the end of so-called “selective incorporation” in which some of the Bill of Rights (or judicial interpretations of them) don’t apply to the states. For example, the Seventh Amendment’s guarantee of a jury trial in civil cases hasn’t been imposed on the states.
But the court now has said that most of the significant protections of the Bill of Rights – the ones dealing with personal liberty – do apply to the states. That’s not just a legal nicety. At a time when the relationship between the states and the federal government is being newly debated – for example, in relation to immigration – it’s important that there is no daylight between the two when it comes to fundamental rights. Where basic rights are concerned, this must be one country.
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