Supreme Court ruling on non-unanimous juries doesn’t apply retroactively

By Conrad Wilson (OPB)
May 17, 2021 5:57 p.m. Updated: May 18, 2021 4:36 p.m.

The U.S. Supreme Court ruled Monday that its decision from last year on the constitutionality of non-unanimous jury convictions doesn’t apply to old cases. The 6-3 ruling this week was decided along traditional liberal-conservative lines.


The justices also noted states could choose for themselves whether to retroactively apply the ruling that found the convictions unconstitutional.

Last year the high court found, in Ramos v. Louisiana, non-unanimous jury verdicts were unconstitutional, ending the practice in Oregon. At the time, Oregon was the lone state in the country that allowed juries to convict people of most felonies with only a 10–2 decision.

Though non-unanimous juries were tossed as a practice, the high court’s ruling left a fundamental question about whether the practice was used unconstitutionally in cases that predated the ruling.

The answer came Monday from the court’s conservatives in the case Edwards v. Vannoy. The case involved Louisiana prisoner Thedrick Edwards, who was sentenced to life after being convicted by a non-unanimous jury and has since argued that prosecutors intentionally excluded Black jurors from the case.

The U.S. Supreme Court found it's previous ruling — that non-unanimous juries were unconstitutional — does not apply to old cases. But also noted states could decide for themselves how to proceed with past convictions.

The U.S. Supreme Court found it's previous ruling — that non-unanimous juries were unconstitutional — does not apply to old cases. But also noted states could decide for themselves how to proceed with past convictions.

J. Scott Applewhite / AP

In writing for the court’s conservative majority, Justice Brett Kavanaugh said applying the court’s earlier ruling retroactively “would potentially overturn decades of convictions.” He added that “conducting scores of trials years after the crimes occurred would require significant state resources.”

The ruling could have tossed out convictions for anyone found guilty by a non-unanimous jury, effectively sending the cases back to the local prosecutor’s office that originally filed the charges to determine how to proceed.

Instead, the Supreme Court will leave that decision up to states. The court’s conservatives also noted their ruling only applies to federal cases. “States remain free, if they choose, to retroactively apply the jury-unanimity rules as a matter of state law in state post-conviction proceedings,” Kavanaugh wrote.

Louisiana Attorney General Jeff Landry, a Republican, praised the ruling.

Oregon Attorney General Ellen Rosenblum, a Democrat, joined Louisiana in opposing retroactivity. After Monday’s ruling, however, Rosenblum said her office would review every case.


“The Court ruled that under federal law the right to a unanimous jury for serious criminal offenses applies to new cases going forward and cases currently on appeal, but does not require the retrial of criminal convictions already final when Ramos was decided,” Rosenblum said in a statement. “My office remains committed to reviewing every case presented to us that involves a request for a new trial. We are carefully reviewing the Edwards decision, and will be working expeditiously on a plan for addressing these cases going forward.”

The attorney general said it could “take more than a year” for the Oregon Supreme Court to rule on retroactivity and give the state guidance on how to proceed.

Rosenblum said the U.S. Supreme Court’s ruling created a “matter of urgency” and called on state lawmakers to convene a hearing to determine next steps.

“The legislature could, reasonably quickly, pass a law focused exclusively on retroactivity with regard to cases impacted by the Ramos/Edwards decisions that are post-appeal, with a clear set of guidelines and criteria for how determinations should be made,” Rosenblum said in an additional statement Monday. “If the legislature decides to apply the new rule retroactively to post conviction cases, my office stands ready to help implement any policy decision it may make.”

Rosenblum, who was elected to a third term in November, has come under increased scrutiny from activists and fellow Democrats surrounding the state’s legal position on non-unanimous juries.

In addition to arguing against retroactivity in the Edward’s case, Oregon also joined Louisiana in 2019 in the Ramos case, arguing non-unanimous jury convictions should be constitutional. Those legal positions have put Rosenblum, a self-proclaimed progressive, at odds with her own personal opposition to non-unanimous verdicts. Before the U.S. Supreme Court’s interventions, Rosenblum supported efforts to repeal non-unanimous jury convictions through a ballot measure.

“If I could’ve not had to write this brief, I’d be very happy, and I would prefer to move forward, and change our law – change our Constitution,” Rosenblum told OPB in 2019 after filing a brief with the U.S. Supreme Court in support of their constitutionality.

The ruling could’ve affected about 1,500 known non-unanimous jury convictions in Louisiana..

There are roughly 300 people in Oregon that could be affected by the Edward’s decision. Data compiled by the Criminal Justice Reform Clinic at Lewis and Clark Law School shows Latino and Black Oregonians are overrepresented by non-unanimous jury verdicts. The exact number of cases may never be known.

In both states, the practice is based in discrimination. Voters in Oregon passed the law allowing non-unanimous convictions in 1934; a time when the Ku Klux Klan was popular and anti-immigrant sentiment was high. In Louisiana, the law was directly tied to Jim Crow laws and aimed to make it easier to convict Black defendants so white landowners could maintain a cheap post-slavery labor force.

Aliza Kaplan, professor at Lewis and Clark Law School in Portland who has studied the history and impacts of non-unanimous jury convictions, said Monday’s ruling was expected.

“Its not enough to talk about racial injustice, people in power must act,” Kaplan said. “[Rosenblum] should not hide behind this ruling, instead she should do the right thing and let folks with unconstitutional non-unanimous jury convictions finally have a fair trial. That’s what justice looks like.”

During last year’s decision in Ramos v. Louisiana, the Supreme Court took the unusual move of overturning precedent to find non-unanimous jury verdicts were unconstitutional. Justice Neil Gorsuch said then that the justices simply got it wrong in 1972 when they ruled on Apodaca v. Oregon, allowing the practice of non-unanimous jury convictions in state criminal cases to continue for decades.

“Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory,” Gorsuch wrote. “But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.”

Judge Elena Kagan wrote the dissent for the court’s three liberals in Monday’s decision. She stated the majority failed to follow its own precedent by not considering the Ramos ruling a “watershed” event, legally speaking.

“The result of today’s ruling is easily stated,” Kagan wrote. “Ramos will not apply retroactively, meaning that a prisoner whose appeals ran out before the decision can receive no aid from the change in law it made.”