The NCSL Blog


By Lisa Soronen

In Apodaca v. Oregon (1972) and Johnson v. Louisiana (1972), five justices agreed that the Sixth Amendment requires unanimous jury verdicts in federal criminal cases. Five Justices also agreed that jury verdicts in state criminal cases don’t have to be unanimous. In Ramos v. Louisiana, accepted for consideration this week, the Supreme Court will consider whether the Sixth Amendment requiring a unanimous verdict in criminal jury trials applies to the states. Only Oregon and Louisiana allow non-unanimous jury verdicts in criminal cases.

scotus blog Evangelisto Ramos was convicted by a 10-2 jury vote of second-degree murder based solely on circumstantial evidence. He was sentenced to life in prison without the possibility of parole. Ramos argues that the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict when it comes to the states.

When the Bill of Rights was ratified in 1791 it applied only to the federal government. Following the adoption of the 14th Amendment, the Supreme Court has held that its Due Process Clause incorporates most, but not all, of the Bill of Rights, making them applicable to the states and local governments.

In Apodaca four justices, in an opinion written by Justice White, looked at the “function served by the jury in a contemporary society” and rejected incorporation. Justice Powell, writing alone, adopted what Ramos describes as a “never-used-before-never-used-since theory of partial incorporation of the Sixth Amendment. Justice Powell believed that the Sixth Amendment required unanimity at the Founding, and in federal cases, but opined that the protections guaranteed by the Fourteenth Amendment were less than those offered by the Sixth Amendment.”

Ramos argues that there has been “a sea change in constitutional exegesis” with regard to the application of the Bill of Rights to the states. According to Ramos, since Apodaca the court has focused on a constitutional right’s “historic origins” rather than its “functional purpose.” “The historical record is clear that unanimity was an essential component of what was conceived of when the Constitution referred to juries.” Ramos also argues that since Apodaca the Supreme Court has “rejected the notion of partial incorporation or watered down versions of the Bill of Rights.”

In its brief opposing certiorari, Louisiana argues that Ramos has failed to show any “new or compelling justification” for overruling Apodaca. “No recent developments in this Court’s Sixth Amendment jurisprudence justify upsetting longstanding precedent in the manner Ramos proposes. To the contrary, this Court has not questioned Apodaca and has cited it positively a number of times.”

Incorporation is on the Justices’ minds. In February, in a unanimous decision in Timbs v. Indiana the Supreme Court held that the Eighth Amendment’s Excessive Fines Clause is “incorporated” or applicable to the states and local governments.

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.