Supreme Court

Supreme Court Won't Make Ban on Non-Unanimous Jury Convictions Retroactive

Bad news for hundreds of imprisoned defendants in Louisiana and Oregon


The Supreme Court ruled 6–3 today that a previous decision—one forcing an end to non-unanimous jury verdicts in criminal trials—shall not be made retroactive.

Today's decision, in Edwards v. Vannoy, answered a question posed by 2020's ruling in Ramos v. Louisiana: If the Supreme Court decides that non-unanimous jury decisions are unconstitutional, do all of those convictions need to be tossed out and the cases retried? The defendant in this case, Thedrick Edwards, was convicted in 2007 of rape, armed robbery, and kidnapping. But two jurors voted to acquit. It was not a unanimous decision. Edwards asked and the Supreme Court agreed to consider whether the Ramos decision was retroactive.

Today, the Supreme Court majority ruled that it was not. Fundamentally this means that people convicted in Louisiana and Oregon, the only two states that have recently permitted non-unanimous convictions, can't turn to the federal government to request relief. (Louisiana citizens voted to end the practice in 2018.)

It's harsh. As the majority opinion, written by Justice Brett Kavanaugh, explains, the Supreme Court almost never makes its rulings on criminal justice issues retroactive to affect those who have already been sentenced. A 1989 precedent, set in Teague v. Lane, set up guidelines for when the Court would consider making a decision on criminal procedure retroactive. Since setting up that test, the Supreme Court has declined to make a single new criminal justice procedural rule retroactive.

The pivotal question the court considers in the Teague doctrine is whether a change counts as a "watershed" rule of criminal procedure. That means, first, that the rule must be necessary to prevent "an impermissibly large risk of an inaccurate conviction." And second, the rule must change the justice system's "understanding of the bedrock procedural elements essential to the fairness of a proceeding."

While one might reasonably conclude that requiring all jury convictions be unanimous would fit the above categories, the majority (all the conservative justices: Kavanaugh, Clarence Thomas, Neil Gorsuch, Samuel Alito, Amy Coney Barrett, and Chief Justice John Roberts) concluded it did not. And three of those justices—Kavanaugh, Thomas, and Gorsuch—agreed with the majority in Ramos. They think non-unanimous convictions were unconstitutional, but they also think those who were convicted by non-unanimous juries were not entitled to relief.

In today's decision, Kavanaugh lists many previous decisions in which Supreme Court justices declined to make their rulings retroactive. He also notes that Edwards' lawyers attempted to use some of those cases to argue for retroactivity. Because the courts never made those previous rulings retroactive, Kavanaugh concludes that it seems unlikely that any future court ruling ever will:

At this point, some 32 years after Teague, we think the only candid answer is that none can—that is, no new rules of criminal procedure can satisfy the watershed exception. We cannot responsibly continue to suggest otherwise to litigants and courts. In Teague itself, the Court recognized that the purported exception was unlikely to apply in practice, because it was "unlikely" that such watershed "components of basic due process have yet to emerge."

He calls the "watershed" exception an "empty promise" that presents a false hope to defendants in these cases. And then he makes it explicit: "New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund."

Thomas and Gorsuch also each wrote separate concurrences (and signed onto each other's) endorsing the abandonment of the Teague test.

Dissenting from the majority were Justices Elena Kagan, Stephen Breyer, and Sonia Sotomayor. Kagan wrote the dissent, which is itself notable because Kagan broke from the other liberal justices in the original Ramos case. Kagan has a strong history of support for maintaining stare decisis, the principle that the Supreme Court should rarely overturn its past precedents. For that reason, she objected in 2020 to Ramos overturning a previous ruling that allowed for non-unanimous jury verdicts in state trials. She was in the minority in that ruling. Now she doesn't want to overturn the "watershed" component of the Teague doctrine, actually for similar reasons.

She argues that the Ramos decision was, indeed, a watershed ruling. Interestingly, Kagan explains the reason Ramos is a watershed ruling was because it did the very thing she objected to—it overturned what had previously been a settled Supreme Court question. She notes:

At bottom, then, the Court took the unusual step of overruling precedent for the most fundamental of reasons: the need to ensure, in keeping with the Nation's oldest traditions, fair and dependable adjudications of a defendant's guilt. In this much alone, Ramos's reasoning evokes this Court's descriptions of watershed rules.

She further objects to overturning Teague in a case where nobody argued that they should. And she notes the potential long-term consequences: Even though the Supreme Court has not in the past found a case to fit Teague's guidelines, that doesn't mean it should close off the possibility of it happening in the future.

"For the first time in many decades…those convicted under rules found not to produce fair and reliable verdicts will be left without recourse in federal courts," she writes.

In Oregon and Louisiana, lawyers for defendants convicted by non-unanimous juries are working to try to get post-conviction relief. In Louisiana, one group has filed more than 1,000 claims on behalf of people serving prison terms. In Oregon, hundreds are in prison hoping for retrials and Attorney General Ellen Rosenblum is under pressure to do something. She has resisted, hoping that today's decision will give her an answer. It did. We'll see how well that sits with her constituents.

NEXT: He's on Montana's Sex Offender Registry for Consensual Gay Sex—and the State Wants To Keep Him There

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  1. "He calls the "watershed" exception an "empty promise" that presents a false hope to defendants in these cases. And then he makes it explicit: "New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund.""

    Well, screw the conservatives for going along with this and good for the liberals in resisting it.

    Perhaps liberals and conservatives are still dividing on moribund Nixon-era lines, law 'n order versus turn 'em loose.

    A trial by jury means a unanimous verdict by a 12-member panel (though the Supremes in their wisdom allow smaller unanimous panels). Diluting either of these requirements is a no-kidding blow at justice, including racial justice for those who are accutomed to racial-justice claims which are mostly bunk. This time it's a *real* wolf - these unconstitutional non-unanimous decisions are an excellent way to make an end-run around any nonwhite jurors who might make it to the jury panel.

    1. Historically, "trial by jury" has neither the requirement to be decided unanimously nor to be decided by 12.

      There are good reasons why those should be the right standard but it's not built into the definition.

      1. So...what do you think of William Blackstone's comment on the subject:

        "[T]he trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law…. [I]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals."

        1. Let me continue quoting from that same post:

          "...John Adams took the same view in America, writing that "it is the unanimity of the jury that preserves the rights of mankind." 1 John Adams, A Defence of the Constitutions of Government of the United States 376 (Philadelphia, William Cobbett 1797).

          "While the Bill of Rights was being ratified, Justice James Wilson — "who was instrumental in framing the Constitution and who served as one of the original Members of this Court," Victor v. Nebraska, 511 U.S. 1, 10 (1994) — stressed the unanimity requirement in his 1790–91 lectures: "To the conviction of a crime, the undoubting and the unanimous sentiment of the twelve jurors is of indispensable necessity." 2 James Wilson, Works of the Honourable James Wilson 350 (Philadelphia, Lorenzo Press 1804); see also 2 id. at 306, 311, 342, 351, 360 (further noting the unanimity requirement)....

          "...As George Hay, the United States Attorney in the Aaron Burr trial, put it, "The trial by jury is a technical phrase of the common law. By its insertion in the constitution, that part of the common law which prescribes the number, the unanimity of the jury and the right of challenge is adopted." United States v. Burr, 25 F. Cas. 55, 141 (C.C.D. Va. 1807).

          "St. George Tucker, author of the 1803 edition of Blackstone's Commentaries, likewise treated the Sixth Amendment as embodying the trial by jury described by Blackstone: His footnote on the Blackstone pages cited above (4 Blackstone *349–50, in 5 St. George Tucker, Blackstone's Commentaries 348–51 (Philadelphia, William Y. Birch & Abraham Small 1803)) noted that "the trial by jury" described in Blackstone's text was adopted in America, and secured by the Sixth Amendment. 5 Tucker, supra, at 348–49 n.2. Tucker cited the Sixth Amendment alongside its Virginia analog, which required "a speedy trial by an impartial jury of his vicinage without whose unanimous consent [the defendant] cannot be found guilty." Ibid. And he wrote that "without [the jurors'] unanimous verdict, or consent, no person can be condemned of any crime." 1 id. at App. 34.

          "Justice Joseph Story, in his great constitutional law treatise, likewise stressed that the constitutional "trial by jury" is the same "great privilege" that had been "part of that admirable common law." 3 Joseph Story, Commentaries on the Constitution of the United States § 1773, at 652 (Boston, Hilliard, Gray 1833). Justice Story endorsed the Blackstone articulation of the terms of that "great privilege": "I commend to the diligent perusal of every scholar, and every legislator, the noble eulogium of Mr. Justice Blackstone on the trial by jury." 3 id. at 654 n.1 (citing "3 Black. Comm. 379, 380, 381; 4 Black. Comm. 349, 350," which note the requirement of unanimity); see also 3 id. at 652 n.1 (citing "4 Black. Comm. 349"); 3 id. at 653 n.2 (citing "4 Black. Comm[.] 349, 350"). And in a different passage, Justice Story further confirmed that unanimity was understood as a constitutional requirement: His discussion of the constitutional standard for impeachment contrasted the two-thirds requirement for conviction in an impeachment trial with the rule in criminal trials, where "unanimity in the verdict of the jury is indispensable." 2 id. § 777, at 248.

          "Nathan Dane's influential 1823 General Abridgment and Digest of American "


          Were are your counter-citations?

          1. None of that applied to the states before the 14th amendment. And the two SC cases - Apodaca v Oregon and Johnson v Louisiana that affirmed that non-unanimity was ok presumably had some legal argument by Burger, Rehnquist, White, Powell, Blackmun

            1. I'm of the group which thinks the privileges and immunities clause protects, among other things, the rights in the Bill of Rights.

              And the Supreme Court has incorporated most of the Bill of Rights by now - pretty much the only real stumbling block is the grand jury clause, which lots of states have made optional, and a couple states have abolished completely.

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  2. Politically, I think what this is about is using habeas corpus to review convictions which have already been upheld on appeal. The conservatives are understandably dubious about this, but in this instance they overreacted, at the expense of constitutional rights.

  3. Got to appreciate Kavanaugh's brutal honesty. More judges should FYTW in their rulings and stop pretending there's a chance

    This is why Governor's should exercise pardons and why they are given pardon power. Because judges can often be constipated by rules.

    1. But a pardon is effectively an acquittal. Hung juries don't aquit, those cases get retried. The guy could be guilty still. I agree that governors should probably pardon more, but I don't think that's a solution here.

      1. Most governors also have the power to commute, that is not reverse the conviction but reduce the sentences.

        One argument used in these cases is that in Louisiana judges would at least sometimes instruct juries that if 10 were in agreement that was enough and their job was done. A jury may have been able to reach a unanimous verdict if they deliberated longer.

  4. "Fundamentally this means that people convicted in Louisiana and Oregon, the only two states that have recently permitted non-unanimous convictions, can't turn to the federal government to request relief."

    Am I reading this right?

    Why TF would Oregon, a supposed paragon of liberal virtues, make criminal convictions non-unanimous?

    For goodness' sake, progressives are America's most horrible people.

    Either that, or maybe the people of Oregon felt like it was impossible to convict violent criminals with so many progressives on their juries, so the normal people among them voted to water unanimous verdicts down by referendum to give the victims of crime a fighting chance?

    1. Why TF would Oregon, a supposed paragon of liberal virtues, make criminal convictions non-unanimous?

      Such a paradox has caused the Kirkland algorithm to suffer a divide by zero error.

    2. FFS. You really are nothing but a partisan asshole aren't you. No principles whatsoever other than R's perfect D's evil.

      Oregon and Louisiana are the only two states that have ever had non-unanimous verdicts for criminal cases. The Supreme Court decision that affirmed those as legal was - Apodaca v Oregon in 1972. The case that overturned that was Ramos v Louisiana last year.

      Oregon was in the process of making that retroactive - but covid shut that down. Is that a valid excuse? Not really but even less is it the horseshit you spew from your partisan asshole.

      1. Does any of this have to do with why it's libertarian or okay to have non-unanimous juries convict people for criminal trials?

        1. YOU are the one who is rationalizing the LA refusal to apply that retroactively to actual prisoners with your partisan flimflam.

          1. Flim flam?

            What's flim flam about pointing out that the progressives of Oregon are a bunch of authoritarian shitheads?

      2. According to a link I saw, Oregon has had non-unanimous convictions since 1934, when it was introduced by referendum, and if it was introduced by referendum, they should be able to repeal it by referendum.

        Ballotpedia says that, "Oregon, so far, holds the records for the most statewide initiatives--there were 384 between 1904 and 2014--the highest average initiative use".

        There must have been hundreds of initiatives passed in Oregon since 1934, and none of them--not even those that passed since the modern progressive era began in the 1960s--were to bring back unanimous verdicts in criminal trials?! The progressives can't even bring themselves to vote to convict people of criminal offenses with a unanimous verdict?!

        Progressives are a bunch of Nazis.

  5. So Oregon is as bad as Louisiana. That should make the progtards squirm a bit.

    1. Worse, because Louisiana changed their laws. (Louisiana citizens voted to end the practice in 2018.)

  6. There's nothing stopping Oregon and Louisiana from reconsidering their older cases.

    And I think the Justices are probably not losing sleep over the observation that some people were convicted with "only" 10 guilty votes.

    1. There is reconsideration underway in Louisiana it's going fairly slowly by some DAs are reviewing cases and the Governor may grant clemency or commutation is some cases. In many cases the people convicted might actually be guilty, and had the jury deliberated with a unanimous requirement may have come to that conclusion.

  7. While one might reasonably conclude that requiring all jury convictions be unanimous would fit the above categories, the majority

    was unreasonable in its decision.

  8. It was a 6 to 3 ruling therefore it shouldn't count.

  9. I had thought that in criminal prosecutions, civil suits have different rules, a conviction required a unanimous finding of guilty. Was I wrong?

    1. Not in Louisiana and Oregon (previously, for several decades). The states have some latitude to legislate what "due process" is in their courts. These two states changed the jury requirement for criminal convictions to allow a 10-2 split. The Supreme Court originally allowed this change, but recently decided that wasn't "due process". (Have the charges been proven beyond a reasonable doubt if one or two jurors disagree?)

      So now there are old convictions over several decades in question, and retrying them all would overload the courts. Also, retrying most of the older ones would be impossible - after 30 or more years, physical evidence has been discarded or misplaced, witnesses have died or moved out of state, and even the ones you can find probably don't remember much. This affects only the small portion of cases that went through a trial rather than a plea bargain, and only the ones where the jury split 10-2 or 11-1 for conviction. I don't think this split happens very often. Furthermore, in some cases the defendant has died, and in most the defendant has served his time and been released. So no one cares about most of the older cases, but that does leave some that are still in prison or parole, and a few ex-cons that still claim they are innocent and want to get free of the civil disabilities of "felon". (Probably very few: most convicts were convicted of other felonies at other times.)

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