Much ink has been spilt, and I have no doubt, that Ramos v. Louisiana, No. 18-5924, 2020 WL 1906545 (Apr. 20, 2020), is really not about unanimous juries, but about stare decisis and more specifically Roe v. Wade. But everyone knows I have a one-track mind, and after all, we are Sentencing Resource Counsel, not Stare Decisis Resource Counsel. So, instead of sorting through the various shifting-justice counts to determine who joined what about precedent, stare decisis, and the privilege and immunities clause (ok, that’s easy, just Thomas), I’m going to focus on Apprendi, and whether certain Louisiana and Oregon convictions are still “convictions” for the purpose of the Almendarez-Torres exception to Apprendi, or even “convictions” for recidivist provisions at all.
In Ramos, Justice Gorsuch pens another beautiful opinion about why the Sixth Amendment right to jury trial in felony cases, as incorporated against the States under the Due Process Clause of the Fourteenth Amendment, requires jury unanimity to convict. Gorsuch writes especially powerfully about the fact that it’s undisputed that the history of the non-unanimous jury shows it was specifically designed to diminish the power of African Americans on juries. It’s worth a read for that reason alone.
What does this mean for me?
Remember, only Louisiana and Oregon had permitted non-unanimous jury verdicts. And even in those cases, we are primarily (but see below, pt. 5) talking about cases where the defendant went to trial and it can be gleaned from the record that the jury verdict was not unanimous. With that said, for our purposes, everyone is pretty clear that this right will extend to non-unanimous felony convictions on direct appeal. Id. at *13. Gorsuch, Ginsburg, Breyer, and Sotomayor say it probably won’t apply on collateral review, id.at *13-14, and Kavanaugh says straight out it won’t, id. at *25.
But that doesn’t necessarily mean that a final, non-unanimous felony conviction can be used to prior someone under 21 USC § 851, 18 USC §924(e), or maybe even the Guidelines. There are a number of theories on which such a challenge might be based. Here are some ideas that come to mind, in no particular order:
1. Almendarez-Torres’s exception to the rule of Apprendi/Alleyne requires a conviction that itself comported with the Sixth Amendment jury trial right. That is, if the rationale for maintaining the Almendarez-Torres exception is that the fact of a prior conviction itself satisfied the Sixth Amendment, then a non-unanimous felony jury conviction does not fit within the rationale—because it does not comport with the Sixth Amendment. Footnote 35 of Ramos cites, inter alia, Apprendi, Blakely, Southern Union, and Descamps, for the proposition that the 6th Amendment right to jury trial means jury unanimity. There is support for this proposition in US v. Tighe, 604 F.3d 408 (9th Cir. 2010), and an excellent Posner dissent (unfortunately, a dissent) in Welch v. U.S., 604 F.3d 408 (7th Cir. 2010).
2. The emphasis on juror unanimity in Descamps and Mathis means that a conviction obtained from a non-unanimous jury cannot be used to increase a statutory sentencing range. These cases emphasize the Sixth Amendment underpinnings of the categorical approach. Their indivisibility requirement derives from the proposition that where a statute is divisible, a conviction could be based on 10 of the jurors finding one means and 2 finding another. Doesn’t a non-unanimous jury verdict establish that the 12 jurors did not agree that the relevant facts were proved, regardless whether they were facts or elements?
3. 21 USC 851(c)(2), (e) provides a time-limited right to challenge a conviction as having been obtained in violation of the Constitution. There does not appear to be a retroactivity requirement here similar to Teague. So, a non-unanimous felony conviction that occurred five years or less than the date of the information alleging the conviction should be challengeable under 851.
4. For other statutes and guidelines, wherever courts have recognized that an uncounseled-felony conviction should not be used to enhance a sentence, can we argue that the right to unanimous jury stands on same footing as right to counsel. In the words of Custis v. United States, 511 U.S. 485, 496 (1994), a “jurisdictional defect resulting from the failure” of the jury to reach a unanimous verdict.
5. OK, getting more farfetched, I know, what about an Oregon or Louisiana plea, where the defendant was advised only of his right to a non-unanimous jury trial?
6. And Steve Sady’s favorite chestnut, the doctrine of constitutional doubt: the word “conviction” should be interpreted to mean conviction by unanimous jury, or conviction in jurisdiction where unanimous jury was required, because any other interpretation would cast constitutional doubt on the statutory scheme. So could we argue that a court doesn’t even need to reach the Sixth Amendment constitutional question when addressing these statutes because “conviction” must be interpreted to mean a conviction based on a unanimous jury finding so as to avoid constitutional problems.
SCOTUSblog case page is here.