Last week, upon announcing its agenda for its 2017-18 session, the Court notified that it would not hear a Louisiana case challenging the exceptional nature of the Sixth Amendment’s application, which governs conduct of criminal trials. This case asked that the high court incorporate through the Fourteenth Amendment the unanimous jury requirement that justices in 1972 ruled applies to federal trials. Uniquely among the Bill of Rights’ contents, the Sixth Amendment contains the only right split between federal and state governments and therefore treated differently.
Only Louisiana and Oregon have opted to use non-unanimous juries for convictions, both born from allegedly racist motives. One theory floated in Louisiana’s case argues that it standard, ten of twelve for conviction, came because the state had a population then about 15 percent black; thus, a typical jury would contain two blacks (men, in those days).
Despite the fact that such logic would not work today, with the state’s black population comprising nearly a third of the total, opponents of non-unanimous juries continue to insist in a presumed inherent racism to it, much like, for example, the idea that because authorities disproportionately convict blacks therefore this necessarily demonstrates racial animus towards blacks, ignoring other obvious and quantifiable indicators that disprove that notion.
But, just like the unfounded claims of institutionalized racism in American society and government, actual empirical evidence demonstrating that white prosecutors and jurors conspire to use the non-unanimous system to convict blacks solely on the basis of racial attitudes simply doesn’t exist. Indeed, if unscrupulous prosecutors wish to nullify blacks serving on juries out of racist motives, they have far more effective tools to do so at their disposal.
Even if buying the argument that, almost a century ago, racist motives explained the non-unanimous system’s implementation, it would remain only an opportunity to achieve racial judicial outcomes but not mandate the actual outcomes. And perfectly non-racial reasons exist for having the standard, such as efficiency in judicial operation. In fact, it can turn the institutionalized racism argument on its head: if society remains so permeated by racist attitudes, then a unanimous system would place more social pressure on those minorities willing to overlook race as a juror to conform that would non-unanimity, as dissenters would find allies and strength in numbers.
Yet practically all of the argumentation against non-unanimity reflexively, if unthinkingly, falls back on the unsustainable institutionalism racism conjecture that assumes bigotry permeates society, and thereby base their opposition on tortuous equal protection interpretations. If that’s all opponents to it have, no wonder Court majorities find their challenges unsatisfying.
Shedding that tired argument and focusing on whether some constitutional principle really can justify that a supposedly fundamental right exists differently depending upon level of government – what theoretical difference about governing at a state level allows it to have different ways of fulfilling a fundamental right than at the federal level – stands a far better chance of nullifying the non-unanimous rule. Braying on about mythical institutionalized racial discrimination in America simply won’t cut it.