Amicus Curiae Brief — Thedrick Edwards, Petitioner v. Darrel Vannoy, Warden

No. 19-5807

In the Supreme Court of the United States

__________________

THEDRICK EDWARDS,

v.

DARREL VANNOY, WARDEN,

__________________

Petitioner,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

__________________

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

UNDER LAW AND THE CENTER FOR CONSTITUTIONAL

RIGHTS AS AMICI CURIAE SUPPORTING PETITIONER

__________________

MATTHEW O. GATEWOOD

Counsel of Record

ADAM C. POLLET

ALEXA R. SHOCKLEY

EVERSHEDS SUTHERLAND (US) LLP

700 Sixth Street, NW, Suite 700

Washington, DC 20001-3980

(202) 383-0100

mattgatewood@eversheds-sutherland.us

KRISTEN CLARKE

JON M. GREENBAUM

ARTHUR AGO

NOAH BARON

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1500 K St. NW, Suite 900

Washington, DC 20005

(202) 662-8600

MICHAEL BOLDT

EVERSHEDS SUTHERLAND (US) LLP

One American Center

600 Congress Avenue, Suite 2000

Austin, TX 78701

(512) 721-2700

JOHN H. FLEMING

MICHELLE T. MCINTYRE

EVERSHEDS SUTHERLAND (US) LLP

999 Peachtree Street, NE

Suite 2300

Atlanta, GA 30309-3996

(404) 853-8000

ALEXANDRA M. LOUDERBACK

EVERSHEDS SUTHERLAND (US) LLP

500 Capitol Mall #1750

Sacramento, CA 95814

(916) 241-0500

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

Non-Unanimous Jury Systems “Seriously

Diminish” Accuracy of Convictions in a

Racially Discriminatory Way, Triggering a

Teague Exception. . . . . . . . . . . . . . . . . . . . . . . 3

A. Non-Unanimous Jury Systems Were

Created for Racially Discriminatory

Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Louisiana Created Its Law To

Eliminate the Influence of Black

Jurors . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. Oregon Created Its Law To Eliminate

the Influence of Non-White and

Immigrant Jurors . . . . . . . . . . . . . . . . . 8

B. Introduction of Racial Bias into the

Criminal Justice System Necessarily

“Seriously Diminish[es]” Accuracy . . . . . 10

C. Non-unanimous Jury Systems Have

Produced Wrongful Convictions,

Disproportionately So for Minority

Defendants . . . . . . . . . . . . . . . . . . . . . . . . 12

1. Exonerations . . . . . . . . . . . . . . . . . . . . 13

ii

2. High Rate of Non-Unanimous Jury

Convictions . . . . . . . . . . . . . . . . . . . . . 16

3. High Rate of Incarceration for Racial

Minorities . . . . . . . . . . . . . . . . . . . . . . 19

II.

New Rules Barring Racial Discrimination

Are Substantive Under Teague. . . . . . . . . . . 20

III.

Teague Does Not Preclude Retroactivity of

New Rules Barring Unconstitutional

Discriminatory Harm . . . . . . . . . . . . . . . . . . 23

A. The Goals of the Ramos Rule Eclipse the

Concerns with Retroactivity Espoused in

Teague. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. Batson v. Kentucky Is Distinguishable . . 27

IV.

As in Other Contexts, Victims of Racial

Discrimination Must Be Restored to “the

Position They Would Have Occupied” but for

the Discrimination. . . . . . . . . . . . . . . . . . . . . 30

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

iii

TABLE OF AUTHORITIES

CASES

Allen v. Hardy,

478 U.S. 255 (1986). . . . . . . . . . . . . . . . . . . . . . . 27

Ballard v. United States,

329 U.S. 187 (1946). . . . . . . . . . . . . . . . . . . . . . . 22

Batson v. Kentucky,

476 U.S. 79 (1986). . . . . . . . . . . . . . . . 3, 27, 28, 29

Beard v. Banks,

542 U.S. 406 (2004). . . . . . . . . . . . . . . . . . . . . . . 29

Engle v. Isaac,

456 U.S. 107 (1982). . . . . . . . . . . . . . . . . . . . . . . 27

Espinoza v. Montana Dep’t of Revenue,

No. 18-1195 (U.S. Jun. 30, 2020) . . . . . . . . . . . . . 4

Ex parte Siebold,

100 U.S. 371 (1880). . . . . . . . . . . . . . . . . . . . . . . 23

Graham v. Collins,

506 U.S. 461 (1993). . . . . . . . . . . . . . . . . . . . . . . 11

Green v. Cty. Sch. Bd. of New Kent Cty.,

391 U.S. 430 (1968). . . . . . . . . . . . . . . . . . . . . . . 33

Hard v. Attorney Gen.,

648 Fed. App’x 853 (11th Cir. 2016). . . . . . . . . . 33

Heckler v. Mathews,

465 U.S. 728 (1984). . . . . . . . . . . . . . . . . . . . . . . 21

Hunter v. Underwood,

471 U.S. 222 (1985). . . . . . . . . . . . . . . . . . . . . . . 20

iv

Hurst v. Florida,

136 S. Ct. 616 (2016). . . . . . . . . . . . . . . . . . . . . . 15

In re State,

489 S.W.3d 454 (Tex. 2016) . . . . . . . . . . . . . . . . 33

J.E.B. v. Alabama ex rel. T.B.,

511 U.S. 127 (1994). . . . . . . . . . . . . . . . . . . . 22, 24

Johnson v. Texas,

509 U.S. 350 (1993). . . . . . . . . . . . . . . . . . . . . . . 24

Louisiana v. Hankton,

122 So. 3d 1028 (La. Ct. App. 4th Cir. 2013) . . . . 5

Louisiana v. United States,

380 U.S. 145 (1965). . . . . . . . . . . . . . . . . 31, 32, 33

Mackey v. United States,

401 U.S. 667 (1971). . . . . . . . . . . . . . . . . . . . . . . 24

McCleskey v. Zant,

499 U.S. 467 (1991). . . . . . . . . . . . . . . . . . . . . . . 24

Milliken v. Bradley,

433 U.S. 267 (1977). . . . . . . . . . . . . . . . . . 3, 30, 31

Miss. Univ. for Women v. Hogan,

458 U.S. 718 (1982). . . . . . . . . . . . . . . . . . . . . . . 22

Montgomery v. Louisiana,

136 S. Ct. 718 (2016). . . . . . . . . . . . . . . . . . passim

O’Neal v. McAninch,

513 U.S. 432 (1995). . . . . . . . . . . . . . . . . . . . . . . 26

Obergefell v. Hodges,

135 S. Ct. 2584 (2015). . . . . . . . . . . . . . . . . . . . . 33

v

Pena-Rodriguez v. Colorado,

137 S. Ct. 855 (2017). . . . . . . . . . . . . . . . . . . 11, 18

Penry v. Lynaugh,

492 U.S. 303 (1989). . . . . . . . . . . . . . . . . . . . . . . 20

Powers v. Ohio,

499 U.S. 400 (1991). . . . . . . . . . . . . . . . . . . . . . . 22

Preiser v. Rodriguez,

411 U.S. 475 (1973). . . . . . . . . . . . . . . . . . . . . . . 25

Ramos v. Louisiana,

140 S. Ct. 1390 (2020). . . . . . . . . . . . . . . . . passim

Ranolls v. Dewling,

223 F. Supp. 3d 613 (E.D. Tex. 2016). . . . . . . . . 33

Reynoldsville Casket Co. v. Hyde,

514 U.S. 749 (1995). . . . . . . . . . . . . . . . . 30, 31, 33

Ring v. Arizona,

536 U.S. 584 (2002). . . . . . . . . . . . . . . . . . . . . . . 14

Roberts v. United States Jaycees,

468 U.S. 609 (1984). . . . . . . . . . . . . . . . . . . . . . . 21

Rose v. Mitchell,

443 U.S. 545 (1979). . . . . . . . . . . . . . 11, 22, 23, 24

Saffle v. Parks,

494 U.S. 484 (1990). . . . . . . . . . . . . . . . . . . . . . . 10

Schriro v. Summerlin,

542 U.S. 348 (2004). . . . . . . . . . . . . . . . . . . . . 4, 20

Schuett v. FedEx Corp.,

119 F. Supp. 3d 1155 (N.D. Cal. 2016). . . . . . . . 33

vi

Solem v. Stumes,

465 U.S. 638 (1984). . . . . . . . . . . . . . . . . . . . . . . 24

State v. Bradley Holbrook,

(Yamhill Cty. 2002). . . . . . . . . . . . . . . . . . . . . . . 14

State v. Catina Curley,

Orleans Parish Case No. 491-907 . . . . . . . . . . . 14

State v. Joshua Horner,

(Deschutes Cty. 2017) . . . . . . . . . . . . . . . . . . . . . 14

State v. Pamela Reser,

No. CR98654B (Yamhill Cty. 1999) . . . . . . . . . . 14

State v. Poole,

292 So. 3d 694 (Fla. 2020) . . . . . . . . . . . . . . . . . 15

State v. Royal Clark,

Jefferson Parish Case No. 02-895 . . . . . . . . . . . 14

State v. Williams,

No. 15–CR–58698 (C. C. Ore., Dec. 15,

2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10, 17

State ex rel. Smith v. Sawyer,

501 P.2d 792 (Ore. 1972) . . . . . . . . . . . . . . . . . . 16

Strauder v. West Virginia,

100 U.S. 303 (1880). . . . . . . . . . . . . . . . . . 4, 22, 26

Teague v. Lane,

489 U.S. 288 (1989). . . . . . . . . . . . . . . . . . . passim

United States v. Virginia,

518 U.S. 515 (1996). . . . . . . . . . . . . . . . . . 3, 30, 31

vii

United States v. Windsor,

570 U.S. 744 (2013). . . . . . . . . . . . . . . . . . . . . . . 33

Whorton v. Bockting,

549 U.S. 406 (2007). . . . . . . . . . . . . . . . . . . . 10, 11

Younger v. Harris,

401 U.S. 37 (1971). . . . . . . . . . . . . . . . . . . . . . . . 25

OTHER AUTHORITIES

33 Cong. Rec. 1063 (1900) . . . . . . . . . . . . . . . . . . . . . 8

Acts Passed by the General Assembly of the State of

Louisiana at the Regular Session (New Orleans,

E.A. Brandao 1880). . . . . . . . . . . . . . . . . . . . . . . . 7

Jeff Adelson, et al., How an Abnormal Louisiana

Law Deprives, Discriminates and Drives

Incarceration: Tilting the Scales, The Advocate

(Apr. 1, 2018), https://www.theadvocate.com/

baton_rouge/news/courts/article_16fd0ece-32b111e8-8770-33eca2a325de.html . . . . . . . . . . . . . . 17

Thomas Aiello, Jim Crow’s Last Stand:

Nonunanimous Criminal Jury Verdicts in

Louisiana (2015) . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7

Douglas A. Blackmon, Slavery by Another Name:

The Re-Enslavement of Black Americans from

the Civil War to World War II (2009) . . . . . . . . . . 6

Brief of Amicus Curiae from Innocence Project New

Orleans and the Innocence Project, Ramos v.

Louisiana, 2019 WL 2563177 (U.S. 2019) (No.

18-5924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

viii

Brief of Amicus Curiae from Prominent and Former

State Executive and Judicial Officers, Law

Professors, and the OCDLA, Ramos v.

Louisiana, 2019 WL 2563177 (U.S. 2019) (No.

18-5924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Nathan Cardon, “Less than Mayhem”: Louisiana’s

Convict Lease, 1864-1901, Louisiana History:

The Journal of the Louisiana Historical

Association (2017) . . . . . . . . . . . . . . . . . . . . . . . . . 6

Mark T. Carleton, The Politics of the Convict Lease

System in Louisiana: 1868-1901, Louisiana

History: The Journal of the Louisiana Historical

Association (1967) . . . . . . . . . . . . . . . . . . . . . . . . . 6

Glenn Davis, Jr., Wrongfully Convicted by Nonunanimous Jury, I Spent 15 Years in Prison for

Crime I Didn’t Commit, The Advocate (Oct. 1,

2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Death Penalty Information Center, DPIC Analysis:

Exoneration Data Suggests Non-Unanimous

Death-Sentencing Statutes Heighten Risk of

Wrongful Convictions, (Mar. 13, 2020),

https://deathpenaltyinfo.org/news/dpic-analysisexoneration-data-suggests-non-unanimousdeath-sentencing-statutes-heighten-risk-ofwrongful-convictions . . . . . . . . . . . . . . . . . . . . . . 15

Christopher Drew, Rust in the Wheels of Justice,

N.Y. TIMES (Nov. 21, 2006). . . . . . . . . . . . . . . . 13

Thomas Ward Frampton, The Jim Crow Jury, 71

Vand. L. Rev. 1593 (2018) . . . . . . . . . . . . . . . 5, 18

ix

Brandon Garrett, Convicting the Innocent: Where

Criminal Prosecutions Go Wrong (Harvard Univ.

Press 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Samuel R. Gross & Michael Shaffer, Nat’l Registry

of Exonerations, Exonerations in the United

States, 1989-2012 (2012),

http://www.law.umich.edu/special/exoneration/

Documents/exonerations_us_1989_2012_full_

report.pdf. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Jerry Kang, et al., Implicit Bias in the Courtroom,

59 UCLA L. Rev. 1124 (2012). . . . . . . . . . . . . . . 18

Aliza B. Kaplan & Amy Saack, Overturning

Apodaca v. Oregon Should Be Easy:

Nonunanimous Jury Verdicts in Criminal Cases

Undermine the Credibility of Our Justice

System, 95 Or. L. Rev. 1 (2016) . . . . . . . . . . . . . 19

Justin D. Levinson, Forgotten Racial Equality:

Implicit Bias, Decisionmaking, and

Misremembering, 57 Duke L.J. 345 (2007) . . . . 18

Justin D. Levinson & Danielle Young, Different

Shades of Bias: Skin Tone, Implicit Racial Bias,

and Judgments of Ambiguous Evidence, 112 W.

Va. L. Rev. 307 (2010). . . . . . . . . . . . . . . . . . . . . 18

Matthew J. Mancini, One Dies, Get Another: Convict

Leasing in the American South, 1866-1928

(Univ. of S. Car. Press 1996) . . . . . . . . . . . . . . . . 6

x

Nat’l Registry of Exonerations, The First 1600

Exonerations Report (2015),

http://www.law.umich.edu/special/exoneration/

Documents/1600_Exonerations.pdf . . . . . . . . . . 13

Ashley Nellis, The Color of Justice: Racial and

Ethnic Disparity in State Prison, The Sentencing

Project (June 14, 2016),

http://www.sentencingproject.org/publications/

color-of-justice-racial-and-ethnic-disparity-instate-prisons/. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Official Journal of Proceedings of the Constitutional

Convention of the State of Louisiana (New

Orleans, H.J. Hearsey 1898) . . . . . . . . . . . 7, 8, 21

Oregon Historical Society: The Oregon

Encyclopedia, Blacks in Oregon,

https://oregonencyclopedia.org/articles/blacks_i

n_oregon/#.XwsKjEVKiM8 . . . . . . . . . . . . . . . . . . 9

Ramos Oral Arg. Trans., available at

https://www.supremecourt.gov/oral_arguments

/argument_transcripts/2019/18-5924_4gcj.pdf . 26

Robert J. Smith & Bidish J. Sarma, How and Why

Race Continues to Influence the Administration

of Criminal Justice in Louisiana, 72 La. L. Rev.

361 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 18, 19

Dan Swenson, Understanding Louisiana’s

Nonunanimous Jury Law Findings: Interactive,

Animated Slideshow, The Advocate (Apr. 1,

2018), https://www.nola.com/article_6f93e1a38c1d-51b0-ae77-e3980ec8decb.html . . . . . . . . . . 16

xi

James Bradley Thayer, A Preliminary Treatise On

Evidence At The Common Law (Boston, Little,

Brown & Co. 1898) . . . . . . . . . . . . . . . . . . . . . . . 12

The Morning Oregonian. . . . . . . . . . . . . . . . . . . . 9, 10

The Oregon Public Defense Services Commission,

On the Frequency of Non-Unanimous Felony

Verdicts In Oregon (May 21, 2009),

http://www.lb7.uscourts.gov/documents/1120911.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1

INTEREST OF AMICI CURIAE1

The Lawyers’ Committee for Civil Rights Under

Law (Lawyers’ Committee) is a nonpartisan, non-profit

civil rights organization formed in 1963 at the request

of President Kennedy. The Lawyers’ Committee enlists

the American bar’s leadership and resources to protect

and defend the civil rights of African Americans and

other people of color. As part of its mission, the

Lawyers’ Committee works to combat racial inequities

and the criminalization of poverty in the criminal

justice system.

The Center for Constitutional Rights (CCR) is a

national non-profit legal, educational, and advocacy

organization dedicated to advancing and protecting the

rights guaranteed by the United States Constitution

and international law. Founded in 1966 to support the

civil rights movement in the South, CCR continues to

challenge all facets of the systemic racism embedded in

this country’s criminal justice system, which is so

plainly manifested in the application of the death

penalty.

SUMMARY OF ARGUMENT

This Court should hold that Ramos v. Louisiana,

140 S. Ct. 1390 (2020), applies retroactively to cases on

collateral review for four different reasons:

1

No counsel for a party authored this brief in whole or in part, and

no entity or person, other than amici curiae, or their counsel, made

a monetary contribution intended to fund the preparation or

submission of this brief. All parties have consented to the filing of

this brief.

2

1. Ramos announced a “watershed” rule that falls

into the exception for procedural rules under Teague v.

Lane, 489 U.S. 288 (1989). Louisiana and Oregon

created non-unanimous jury systems with the

indisputable intent to introduce race-based inaccuracy

into the criminal justice system. Derived in Louisiana

from a Jim Crow-era racist fear of Black influence, and

in Oregon from a racist fear of non-white and

immigrant influence, these systems have achieved

their intended purposes of reinforcing racial inequities,

subordinating racial minorities, and diminishing the

accuracy of guilty verdicts for minority defendants.

2. Under Teague, the Court’s rule in Ramos should

be considered a substantive one that demands

retroactive application. Non-unanimous jury systems

inflict unconstitutional racially discriminatory harm,

which is beyond the power of the State to inflict.

Montgomery v. Louisiana, 136 S. Ct. 718, 729 (2016).

Because that harm operates independent of any risk of

wrongful conviction, Ramos recognized a substantive

rule that demands retroactive application under

Teague.

3. Rules barring discrimination do not implicate

the interests Teague cited as justifying nonretroactivity. The Ramos rule’s purpose—ending racial

discrimination through unanimous verdicts—eclipses

the goals of finality and comity espoused by Teague.

The systems struck down by Ramos undermined the

criminal justice system’s goals of deterrence, reliability,

and finality. Similarly, any comity interests are

negated when the underlying convictions were achieved

by racist aims that produced racist results. And the

3

Ramos rule, unlike the rule announced in Batson v.

Kentucky, 476 U.S. 79 (1986), is inextricable from the

aims of accuracy and truth-finding in criminal trials.

4. The Equal Protection Clause requires retroactive

application of Ramos to restore individuals deprived of

their freedom by racially discriminatory systems with

the opportunity to return to “the position they would

have occupied” but for the rule’s application. United

States v. Virginia, 518 U.S. 515, 547 (1996) (quoting

Milliken v. Bradley, 433 U.S. 267, 280 (1977)).

ARGUMENT

I.

Non-Unanimous Jury Systems “Seriously

Diminish” Accuracy of Convictions in a

Racially Discriminatory Way, Triggering a

Teague Exception.

A. Non-Unanimous Jury Systems Were

Created for Racially Discriminatory

Purposes.

The two states to adopt non-unanimous jury

systems created them for the vile purposes of silencing

minority voices and convicting minorities. This is not

only morally abhorrent but also compels the conclusion

that the bar on those systems should be retroactive

under Teague’s exception for “‘watershed rules of

criminal procedure’ implicating the fundamental

fairness and accuracy of the criminal proceeding.”

4

Montgomery, 136 S. Ct. at 728 (quoting Schriro v.

Summerlin, 542 U.S. 348, 352 (2004)).2

The Court in Ramos emphasized the discriminatory,

racist purposes of the non-unanimous jury system

when declaring it unconstitutional. Ramos, 140 S. Ct.

at 1394 (discussing racist origins of non-unanimous

jury laws); id. at 1401 (same); id. at 1408 (Sotomayor,

J., concurring) (“[T]he racially biased origins of the

Louisiana and Oregon laws uniquely matter here.”); id.

at 1417 (Kavanaugh, J., concurring) (“In light of the

racist origins of the non-unanimous jury, it is no

surprise that non-unanimous juries can make a

difference in practice, especially in cases involving

black defendants, victims, or jurors.”).3

1. Louisiana Created Its Law To

Eliminate the Influence of Black

Jurors.

In 1880, on the heels of the ratification of the

Fourteenth Amendment and passage of the Civil

Rights Act of 1875, the Court held in Strauder v. West

Virginia, 100 U.S. 303 (1880), that states could not bar

2

Amici agree with Petitioner that the Ramos rule is not new and

therefore retroactive. See generally Pet. Brief. Amici write

separately, in part, to provide the Court with further analysis that,

even if new, the Ramos rule is excepted under Teague.

3

Justice Alito, in dissent in Ramos, argued that this original

motivation, though deplorable, was not relevant because such laws

could be adopted for nondiscriminatory reasons. Ramos, 140 S. Ct.

at 1425–1426. Subsequently, however, he acknowledged that “I

lost, and Ramos is now precedent” for the proposition that the

discriminatory origins of statutes matter in assessing their

constitutionality. Espinoza v. Montana Dep’t of Revenue, No. 181195, 35–36 (U.S. Jun. 30, 2020).

5

Black jurors.

Previously, Louisiana required a

unanimous jury for a felony conviction. See Louisiana

v. Hankton, 122 So. 3d 1028, 1031–32 n.5 (La. Ct. App.

4th Cir. 2013). Once the ruling whites could not deny

Black participation on juries as a matter of law, they

had to get creative.

Louisiana newspapers promulgated a fear that

Black jurors simply would subvert the interests of

justice. See Thomas Ward Frampton, The Jim Crow

Jury, 71 Vand. L. Rev. 1593, 1617 (2018) (quoting

Louisiana newspaper articles from the relevant period).

That reporting captured the racist underpinnings of

that fear, characterizing Black jurors “as ignorant,

incapable of determining credibility, and susceptible to

bribery.” Robert J. Smith & Bidish J. Sarma, How and

Why Race Continues to Influence the Administration of

Criminal Justice in Louisiana, 72 La. L. Rev. 361, 376

(2012). The white majority worried that Black jurors

would not vote to convict Black defendants. See

Frampton, supra, at 1603.

Fewer convictions of Black defendants also

threatened Louisiana’s practice of convict leasing,

which involved the State leasing penal labor to

plantation owners and corporations to work on farms.

“The abolition of slavery changed the penitentiary from

a predominantly white institution to one that was

majority black. It changed the direction of prison work

from industrial to agricultural labor, as white

politicians sought to reinstitute a form of control over

its newly freed workforce.” Thomas Aiello, Jim Crow’s

Last Stand: Nonunanimous Criminal Jury Verdicts in

Louisiana, loc. 234 (2015) (ebook) (explaining that after

6

the Civil War, convict leasing overwhelmingly targeted

Black men); Douglas A. Blackmon, Slavery by Another

Name: The Re-Enslavement of Black Americans from

the Civil War to World War II (2009).

Because a convict was “leased” only for the duration

of his sentence, there was little-to-no economic

incentive for private lessees to maintain safe work

environments. Aiello, supra, at loc. 259–65 (“Unlike a

slave system that kept workers with an owner for life,

and therefore made them a long-term investment, [the

lessee] had custody of his ‘slaves’ only for the duration

of their sentence . . . and made the potential for [a

convict’s] illness and death that much greater.”). “In

economic terms, it made sense to keep the convict at a

subsistence, if not lower, level. . . . ‘Before the war we

owned the negroes. . . . But these convicts we don’t own

‘em. One dies, get another.’” Nathan Cardon, “Less

than Mayhem”: Louisiana’s Convict Lease, 1864-1901,

Louisiana History: The Journal of the Louisiana

Historical Association 423 (2017); see also Matthew J.

Mancini, One Dies, Get Another: Convict Leasing in the

American South, 1866-1928, 3 (Univ. of S. Car. Press

1996). An official of the Prison Reform Association of

Louisiana estimated that the death rate per 1,000

prisoners per year from 1893 to 1901 was more than

100, which made Louisiana one of the most brutal

convict lease systems in the world. Mark T. Carleton,

The Politics of the Convict Lease System in Louisiana:

1868-1901, Louisiana History: The Journal of the

Louisiana Historical Association 6 (1967).

In 1880, to ensure that the State had an ample

supply of convicts to sustain its convict-leasing needs,

7

particularly in light of so many convicts dying because

of astoundingly poor conditions, the Louisiana

legislature lowered the verdict requirement to allow for

non-unanimous jury decisions. See Acts Passed by the

General Assembly of the State of Louisiana at the

Regular Session 141–142 (New Orleans, E.A. Brandao

1880). “Supply had to meet demand. And so the

Louisiana legislature created a new law in 1880 that

removed the unanimity requirement. . . . The law

created a larger criminal population . . . and reenslaved

more and more of the state’s black population.” Aiello,

supra, at loc. 267–68.

In 1898, the State adopted the non-unanimous jury

system into the Louisiana Constitution during a

constitutional convention focused on eradicating any

meaningful civic participation of Black citizens. See

generally Official Journal of Proceedings of the

Constitutional Convention of the State of Louisiana

(New Orleans, H.J. Hearsey 1898) (“Louisiana

Convention Record”). The convention adopted the rule

that only nine of twelve jurors needed to vote guilty for

a conviction, ensuring that three jurors could be

ignored.

At the time, 14.7% of jury-eligible

Louisianans were Black, making it unlikely that more

than three Black jurors would be on the same jury. See

Ex. 21 at 27, State v. Maxie, 13-CR-72522 (La. 11th

Jud. Dist. Ct. Oct. 11, 2018) (Testimony of Prof.

Lawrence Powell); id., slip op. at 28, J.A. 57; see also

Ramos, 140 S. Ct. at 1394 (noting convention crafted

rule “[w]ith a careful eye on racial demographics”).

Convention delegates did not hide their racist goals.

The convention president proclaimed that the purpose

8

of the convention was “to eliminate from the electorate

the mass of corrupt and illiterate voters who have

during the last quarter of a century degraded our

politics.” Louisiana Convention Record, at 9. The

Judiciary Committee Chair declared that the “mission

was . . . to establish the supremacy of the white race in

this State to the extent to which it could be legally and

constitutionally done. . . .” Id. at 375; see also 33 Cong.

Rec. 1063–64 (1900) (Statement of U.S. Senator

McEnery from Louisiana describing 1898 convention as

aimed at preventing “ignorant blacks” from “getting

control of the State”).

Louisiana’s reenactment of the non-unanimous jury

system in 1973 without mention of its racist origins did

not in any way sweep those origins under the rug. See

Ramos, 140 S. Ct. at 1410 (Sotomayor, J., concurring).

2. Oregon Created Its Law To Eliminate

the Influence of Non-White and

Immigrant Jurors.

Discriminatory, racist fear of minority influence

also led to the creation of Oregon’s non-unanimous jury

system in 1934. Id. at 1394 (“Adopted in the 1930s,

Oregon’s rule permitting nonunanimous verdicts can be

similarly traced to the rise of the Ku Klux Klan and

efforts to dilute ‘the influence of racial, ethnic, and

religious minorities on Oregon juries.’”) (quoting

Opinion and Order at 16, State v. Williams, No.

15–CR–58698 (C. C. Ore., Dec. 15, 2016)).

Oregon’s fear encompassed Black persons, whom

Oregon classified as “immigrants” and prohibited from

entering the State until 1927. Williams, at 11. In the

9

1920s, Oregon had the largest Ku Klux Klan chapter

west of the Mississippi, totaling more than 200,000

members.4 In 1934, only seven years after Oregon

permitted Black persons to return, its legislature

adopted a non-unanimous jury system. Id. at 11–12.

Three prominent court-related news stories in

Oregon papers led to the State’s action. In each

instance, Oregon newspapers focused on the racial

composition of juries that prevented guilty verdicts,

which fueled the public’s fears. Williams, at 13–14.

First, the “Massie Affair” in Honolulu involved a

deadlocked jury in a case alleging the rape of a white

woman by five non-white men. A May 7, 1932 column

in The Morning Oregonian contended that the “native

and mixed-blooded people” exhibited a “lack of

responsibility” by “freeing the assaulters of Mrs.

Massie.”

Second, The Morning Oregonian, on November 3,

1933, claimed that the influx of immigrants and their

children was a cause of widespread jury fixing in

Boston: “[M]any people in the world are unfit for

democratic institutions . . . , for instance, the complete

lack of a sense of responsibility on the part of the

recent mixed murder jury in Honolulu.”

And third, a critical trial occurred within Oregon.

Jake Silverman, a Jewish man charged with murder,

ultimately received three years in prison for

manslaughter after eleven jurors wanted to convict on

4

Oregon Historical Society: The Oregon Encyclopedia,

Blacks in Oregon, https://oregonencyclopedia.org/articles/blacks_

in_oregon/#.XwsKjEVKiM8.

10

second-degree murder, but one wanted to acquit.

Williams, at 14–15. The compromise verdict fueled

continued public outrage. The Morning Oregonian, on

November 25, 1933, linked the verdict to “the vast

immigration into America from southern and eastern

Europe.” See also id. at 15–16 (noting that media

coverage focused on issues of race and jury

composition). Within weeks of that trial, the Oregon

legislature asked citizens to vote on a constitutional

amendment that would allow convictions if ten out of

twelve jurors voted guilty. Id. (explaining that

arguments supporting passage of amendment included

specific references to Silverman trial).

“[T]he inescapable conclusion is that the historical

evidence supports a racial undercurrent to 302-33

[Oregon’s non-unanimous jury system].” Id. at 16.

Accordingly, Williams made a finding of fact “that race

and ethnicity was a motivating factor in the passage of

302-33, and that the measure was intended, at least in

part, to dampen the influence of racial, ethnic, and

religious minorities on Oregon juries.” Id.

B. Introduction of Racial Bias into the

Criminal Justice System Necessarily

“Seriously Diminish[es]” Accuracy.

Under Teague, a “‘watershed rul[e] of criminal

procedure’ implicating the fundamental fairness and

accuracy of the criminal proceeding” will have

retroactive effect. Whorton v. Bockting, 549 U.S. 406,

417 (2007) (quoting Saffle v. Parks, 494 U.S. 484, 495

(1990)). To qualify as “watershed,” a rule must be

“necessary to prevent an impermissibly large risk of an

inaccurate conviction.” Id. at 418 (internal quotations

11

omitted). The rule must also “constitute a previously

unrecognized bedrock procedural element that is

essential to the fairness of a proceeding.” Id. at 421.

Ramos qualifies because the Court rejected a system

that was designed to, and did, produce inaccurate

results in criminal trials.

As discussed in Petitioner’s brief, even absent a

racist intent, a non-unanimous jury system lacks the

thorough, careful, and reliable deliberations of a

unanimous system. See Pet. Br. at 22–34. Unanimity

requires the entire jury to consider, accept, or reject

minority viewpoints.

Add racial bias to the equation and the risk that

non-unanimous juries produce inaccurate convictions

becomes not just “impermissibly large,” but

overwhelmingly so. “[D]iscrimination on the basis of

race, ‘odious in all aspects, is especially pernicious in

the administration of justice,’” damaging the jury

system both in “fact” and in “perception.” PenaRodriguez v. Colorado, 137 S. Ct. 855, 868 (2017)

(quoting Rose v. Mitchell, 443 U.S. 545, 555 (1979)).

While “racial prejudice” is the “paradigmatic capricious

and irrational sentencing factor,” Graham v. Collins,

506 U.S. 461, 484 (1993) (Thomas, J., concurring),

racial prejudice at the verdict stage is equally

capricious, irrational, and thus highly subject to

erroneous convictions.

Louisiana and Oregon enacted non-unanimity

statutes to put more non-whites in jail. “[T]he whole

point of adopting the non-unanimous jury requirement”

was to “make a difference in practice” by “silenc[ing]

the voices and negat[ing] the votes of black jurors.”

12

Ramos, 140 S. Ct. at 1417–1418 (Kavanaugh, J.,

concurring). As the data shows, the system worked

the way the adopters intended.

While some may argue that a particular conviction

might not have turned out differently under a

unanimity requirement, that type of counterfactual

reasoning is particularly inapt here. A non-unanimous

verdict is, by definition, inaccurate: “[a] ‘verdict, taken

from eleven, [is] no verdict’ at all.” Id. at 1395 (quoting

James Bradley Thayer, A Preliminary Treatise On

Evidence At The Common Law 88–89, n.4 (Boston,

Little, Brown & Co. 1898)). It is no response to say

that some who voted to acquit might have changed

their minds—to do so is to disregard the votes those

jurors actually cast, which was the whole point of the

non-unanimous jury system. The Court should not

repeat that error.

C. Non-unanimous Jury Systems Have

Produced Wrongful Convictions,

Disproportionately So for Minority

Defendants.

As explained, the creators of the non-unanimous

jury system succeeded in accomplishing their racist

motives, but the insidious nature of non-unanimous

juries inevitably makes the total universe of wrongful

convictions difficult to catalogue. While exonerations

provide straightforward evidence of diminished

accuracy, high rates of non-unanimous jury convictions

and high incarceration rates for people of color serve as

useful proxies.

13

1. Exonerations

Exonerations of Black defendants convicted by nonunanimous juries provide quintessential evidence of

the system’s seriously diminished accuracy. According

to a 2015 report by the National Registry of

Exonerations (“NRE”), Louisiana is second in the

nation in the rate of wrongful convictions.5

And, according to the NRE, Orleans Parish,

Louisiana (New Orleans) has the highest per capita

rate of proven wrongful convictions of any major

metropolitan county. Id. at 15. In fact, New Orleans’s

per capita rate of proven wrongful convictions is almost

ten times the national average and more than 40%

higher than the city with the second highest rate

(Boston). Brief of Amicus Curiae from Innocence

Project New Orleans and the Innocence Project, Ramos

v. Louisiana, 2019 WL 2563177, at *6 (U.S. 2019) (No.

18-5924) (“Innocence Project Brief”). This rate exists in

New Orleans despite the fact that thousands of items

of evidence in closed or cold cases that could have been

DNA tested to prove innocence were lost during the

flooding following Hurricane Katrina in 2005. See

Christopher Drew, Rust in the Wheels of Justice, N.Y.

TIMES (Nov. 21, 2006).

Of the 32 exonerations in Louisiana where the jury

was permitted to convict by a non-unanimous vote, at

least 15—almost half—involved non-unanimous jury

5

See Nat’l Registry of Exonerations, The First 1600 Exonerations

Report 14 (2015), http://www.law.umich.edu/special/exoneration/

Documents/1600_Exonerations.pdf.

14

convictions of innocent persons.6 See Innocence Project

Brief, 2019 WL 2563177, at *8 n.12. All but three had

been wrongly sentenced to life in prison without parole

based on a non-unanimous verdict. Twelve of the

fifteen were Black.

There is less data in Oregon in part because Oregon

did not have an organization dedicated to investigating

wrongful convictions in criminal cases until 2014.

Since 1989, there have been 20 exonerations in Oregon,

according to the NRE. At least three involved nonunanimous juries.7

While only Louisiana and Oregon used nonunanimous jury systems for convictions, Florida,

Alabama, and Delaware used non-unanimous jury

systems for sentencing, including for imposing capital

6

Counsel has located two subsequent exonerations of defendants

convicted by a non-unanimous jury that have occurred since the

Innocence Project Brief: State v. Royal Clark, Jefferson Parish

Case No. 02-895; State v. Catina Curley, Orleans Parish Case No.

491-907. This represents only the number of cases that can be

confirmed as a result of reported non-unanimous verdicts. There

are likely several more that cannot be confirmed because complete

information is unavailable in all of the 32 exonerations. The

number of people still in prison wrongly convicted by nonunanimous juries (and who do not have the right to a stateappointed attorney following direct appeal) is likely significantly

higher than those identified. See Samuel R. Gross & Michael

Shaffer, Nat’l Registry of Exonerations, Exonerations in the United

States, 1989-2012, 16 n.26 (2012), http://www.law.umich.edu/

special/exoneration/Documents/exonerations_us_1989_2012_full_

report.pdf.

7

State v. Pamela Reser, No. CR98654B (Yamhill Cty. 1999); State

v. Bradley Holbrook (Yamhill Cty. 2002); State v. Joshua Horner

(Deschutes Cty. 2017).

15

punishment.8 As with convictions, the use of the nonunanimous jury system in sentencing is fatally flawed

and inaccurate.9 Since 1972, there have been 32

exonerations of persons sentenced to death in those

three states; in 30 of these cases, the jury vote was

determinable. Id. In 28 of those 30 exonerations, at

least one juror voted against a death sentence—a rate

of 93.3%. Id.

Allowing non-unanimity played a role in

diminishing the accuracy of the outcomes in those

cases.

Other innocent people certainly remain

incarcerated because of non-unanimous jury verdicts,

but their convictions remain intact because of the

difficulty in overturning a conviction based on an

innocence claim. See Brandon Garrett, Convicting the

Innocent: Where Criminal Prosecutions Go Wrong

(Harvard Univ. Press 2012) (finding that, of 250 of the

first DNA exonerees, 90% of those who challenged their

convictions prior to DNA testing failed).

Finally, it is inevitable that many of the nonunanimous convictions led to convictions of more

serious crimes and longer sentences than would have

been the case had unanimity been required, which

8

Those states altered that practice after this Court’s decisions in

Ring v. Arizona, 536 U.S. 584 (2002), and Hurst v. Florida, 136

S. Ct. 616, 619 (2016). Cf. State v. Poole, 292 So. 3d 694 (Fla.

2020).

9

See Death Penalty Information Center, DPIC Analysis:

Exoneration Data Suggests Non-Unanimous Death-Sentencing

Statutes Heighten Risk of Wrongful Convictions, (Mar. 13, 2020),

https://deathpenaltyinfo.org/news/dpic-analysis-exoneration-datasuggests-non-unanimous-death-sentencing-statutes-heighten-riskof-wrongful-convictions.

16

often leads to compromise and agreement on lesser

included offenses. Because a non-unanimous verdict is

“no verdict at all,” those “verdicts” are “wrongful

convictions” for purposes of this analysis, and doubtless

have occurred in the racially disproportionate manner

the respective states intended.

2. High Rate of Non-Unanimous Jury

Convictions

As intended, non-unanimous jury verdicts led to

higher rates of convictions, in particular for non-white

defendants. See State ex rel. Smith v. Sawyer, 501 P.2d

792, 793 (Ore. 1972). In 2009, the Oregon Public

Defense Services Commission prepared a report on the

rates of non-unanimous convictions to address the

“widely differing opinions on the frequency of nonunanimous verdicts.”10 That commission concluded

that of 662 sample cases, more than 40% resulted in

non-unanimous verdicts. Louisiana has similar rates,

with one report showing “[r]oughly 40 percent of the

people who are convicted after jury trials in Louisiana

are convicted by nonunanimous juries.”11

Non-unanimous jury convictions have a greater

impact on people of color. In Louisiana, Blacks were

more likely to be convicted by a non-unanimous jury

than whites: available data shows that 43% of Black

10

The Oregon Public Defense Services Commission, On the

Frequency of Non-Unanimous Felony Verdicts In Oregon (May 21,

2009), http://www.lb7.uscourts.gov/documents/11-20911.pdf.

11

Dan Swenson, Understanding Louisiana’s Nonunanimous Jury

Law Findings: Interactive, Animated Slideshow, The Advocate

(Apr. 1, 2018), https://www.nola.com/article_6f93e1a3-8c1d-51b0ae77-e3980ec8decb.html.

17

defendants were convicted by a non-unanimous jury,

compared to 33% of white defendants.12

In Oregon there is little data reflecting the rates of

non-unanimous jury verdicts against racial and ethnic

minorities. But there is compelling anecdotal evidence

that comports with the data from Louisiana. For

example, in Williams, a non-unanimous jury found a

Black defendant guilty of one count of sodomy and the

judge sentenced him to 100 months of imprisonment,

but at sentencing, the lone Black juror raised her hand

and said that she voted to acquit and that the

conviction was unfair. Williams, at 1–2. She later

explained that the other jurors ignored her opinions, as

well as those of the other dissenting juror, because they

were verdict-driven and refused to consider the

evidence. Brief of Amicus Curiae from Prominent and

Former State Executive and Judicial Officers, Law

Professors, and the OCDLA, Ramos v. Louisiana, 2019

WL 2563177, at *24 (U.S. 2019) (No. 18-5924).

The greater number of non-unanimous jury

convictions against people of color likely stems from the

ability to suppress minority juror votes. A 2018

analysis of non-unanimous Louisiana convictions

showed that “black jurors found themselves casting

‘empty votes’– that is, ‘not guilty’ votes overridden by

the supermajority vote of the other jurors – with 164%

of the frequency we would expect if jurors voted ‘guilty’

12

Jeff Adelson, et al., How an Abnormal Louisiana Law Deprives,

Discriminates and Drives Incarceration: Tilting the Scales, The

Advocate (Apr. 1, 2018), https://www.theadvocate.com/baton_rouge

/news/courts/article_16fd0ece-32b1-11e8-8770-33eca2a325de.html.

18

and ‘not guilty’ in a racially balanced manner.”

Frampton, supra, at 1637.

These racially disparate results do not arise solely

from outright racist sentiments (though some do), but

also arise from implicit bias. Empirical evidence shows

that implicit bias—the unintentional stereotyping that

affects everyone’s decision-making—has an impact on

false memories and judgments about ambiguous

evidence. See Jerry Kang, et al., Implicit Bias in the

Courtroom, 59 UCLA L. Rev. 1124, 1126 (2012)

(“[J]urors of one race treat defendants of another race

worse with respect to verdict and sentencing.”); Justin

D. Levinson, Forgotten Racial Equality: Implicit Bias,

Decisionmaking, and Misremembering, 57 Duke L.J.

345, 404 (2007); Justin D. Levinson & Danielle Young,

Different Shades of Bias: Skin Tone, Implicit Racial

Bias, and Judgments of Ambiguous Evidence, 112 W.

Va. L. Rev. 307, 339 (2010) (participants found

ambiguous evidence significantly more indicative of

guilt when perpetrator had dark skin). Empirical

evidence also shows that requiring unanimity among

jurors lessens the impact of racial bias. Smith &

Sarma, supra, at 379, 395 (juries with no Black male

members imposed death sentences in more than 71% of

cases compared to 42.9% where at least one black

person served). Allowing non-unanimous jury verdicts

to stand thus increases the risk that convictions are

infected by implicit racial bias, which is

constitutionally unacceptable. See Pena-Rodriguez, 137

S. Ct. at 868 (“[R]acial bias, a familiar and recurring

evil that, if left unaddressed, would risk systemic

injury to the administration of justice.”).

19

3. High Rate of Incarceration for Racial

Minorities

The high rate of incarceration for racial minorities

in Louisiana and Oregon shows that the system is

working as intended. Louisiana now “leads the nation

and the entire world in the incarceration of African

Americans per capita.” Glenn Davis, Jr., Wrongfully

Convicted by Non-unanimous Jury, I Spent 15 Years in

Prison for Crime I Didn’t Commit, The Advocate (Oct.

1, 2018). “Over 70% of all prisoners in Louisiana are

African-American, despite the fact that African

Americans constitute 32% of the State’s population.”

Smith & Sarma, supra at 361, 365. By contrast,

Mississippi—a similar, nearby state without nonunanimous juries—has the fortieth highest

incarceration rate of Black people in the nation.13 In

Oregon, Blacks are incarcerated more often than

whites at a rate of 5.6 to 1. Aliza B. Kaplan & Amy

Saack, Overturning Apodaca v. Oregon Should Be

Easy: Nonunanimous Jury Verdicts in Criminal Cases

Undermine the Credibility of Our Justice System, 95

Or. L. Rev. 1, 42 (2016). “[I]n 2014, one in twenty-one

of all African American adult males were in prison.”

Id.

These data points likely reveal just the tip of the

iceberg for wrongful convictions obtained through nonunanimous jury convictions.

13

Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity

in State Prison, The Sentencing Project (June 14, 2016),

http://www.sentencingproject.org/publications/color-of-justiceracial-and-ethnic-disparity-in-state-prisons/.

20

II.

New Rules Barring Racial Discrimination

Are Substantive Under Teague.

The harm of Louisiana’s and Oregon’s racially

discriminatory jury systems reaches beyond the threat

of wrongful convictions. Aimed at producing inaccurate

results, their systems’ purposes of reinforcing racial

inequities and subordinating racial minorities matter

too.

Ramos should be retroactive because it is a

substantive rule under Teague and its progeny. While

Ramos’s rule does have procedural elements, a rule is

not transmogrified from substantive to procedural

merely because it is both procedural and substantive;

rather, procedural rules regulate “only the manner of

determining the defendant’s culpability.” Schriro v.

Summerlin, 542 U.S. 348, 353 (2004) (emphasis added).

Accordingly, where, as here, a rule has both procedural

and substantive features, the Court must treat it

analytically as substantive and apply it retroactively.

Substantive rules are those “guarantees accorded by

the Constitution, regardless of the procedures

followed.” Penry v. Lynaugh, 492 U.S. 303, 329 (1989).

Those guarantees are “categorical” and “place certain

criminal laws and punishments altogether beyond the

State’s power to impose.” Montgomery, 136 S. Ct. at

729.

Protection from race discrimination is precisely such

a guarantee. The State is categorically barred from

establishing a caste system, whether explicitly or

implicitly. See Hunter v. Underwood, 471 U.S. 222,

227–228 (1985) (finding that 1902 Alabama facially

21

neutral constitutional provision violated Equal

Protection Clause due to racist intent and results).

This bar places the infliction of a certain kind of harm

“altogether beyond the State’s power to impose.”

Montgomery, 136 S. Ct. at 729. Thus, as Ramos

recognized, it is “categorically” beyond the State’s

power to use the jury system to “establish the

supremacy of the white race.” 140 S. Ct. at 1394

(quoting Louisiana Convention Record). Because the

non-unanimous jury system was the product of racist

intent and produced racially disparate outcomes, both

it and the harm it inflicted was “barred by the

Constitution” and was “by definition, unlawful.”

Montgomery, 136 S. Ct. at 729–730.

This harm cannot be equated to or bound up with

the “ordinary” harms in the risk of wrongful

conviction—even if the non-unanimous jury rule had no

effect on the rate of wrongful convictions, the

discriminatory harms would still be present.

Accordingly, rules barring discriminatory harm are

qualitatively different from procedural rules.

Preserving convictions by non-unanimous juries not

only perverts our system of justice but, like all systems

of discrimination, inflicts “serious social and personal

harms” upon racial minorities. Roberts v. United

States Jaycees, 468 U.S. 609, 625 (1984); see also

Heckler v. Mathews, 465 U.S. 728, 739–740 (1984)

(“[D]iscrimination itself, by perpetuating ‘archaic and

stereotypic notions’ or by stigmatizing members of the

disfavored group as ‘innately inferior’ and therefore as

less worthy participants in the political community can

cause serious non-economic injuries . . . .” (quoting

22

Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725

(1982)).

Discriminatory harm is especially concerning when

manifested in the criminal justice process. See, e.g.,

Rose v. Mitchell, 443 U.S. 545, 555 (1979)

(“Discrimination on the basis of race, odious in all

aspects, is especially pernicious in the administration

of justice.”).

Moreover, “[t]he injury is not limited to the

defendant.” Ballard v. United States, 329 U.S. 187, 195

(1946). Just as race-based exclusion of petit jurors

violates the juror’s rights under the Equal Protection

Clause, Powers v. Ohio, 499 U.S. 400, 409 (1991), so too

did the non-unanimous jury rule violate the rights of

minority jurors whose voices Louisiana and Oregon

purposefully silenced because of their race. By

rendering irrelevant the votes of non-white jurors,

Louisiana and Oregon imposed “a brand upon them”

and the defendants, functioning as “an assertion of

their inferiority, and a stimulant to that race prejudice

which is an impediment to securing to individuals of

the race that equal justice which the law aims to secure

to all others.” Strauder, 100 U.S. at 308.

The community is also harmed “by the State’s

participation in the perpetuation of invidious group

stereotypes and the inevitable loss of confidence in our

judicial system that state-sanctioned discrimination in

the courtroom engenders.” J.E.B. v. Alabama ex rel.

T.B., 511 U.S. 127, 140 (1994); see also Ballard, 329

U.S. at 195 (noting harm to “the law as an institution”

and “to the community at large”). Allowing convictions

obtained under Jim Crow laws to stand “destroys the

23

appearance of justice and thereby casts doubt on the

integrity of the judicial process.” Rose, 443 U.S. at

555–557. Ramos made clear that non-unanimous

convictions must not stand in the future. The Court

today should announce that past convictions under this

scheme, regardless of finality, similarly must not

stand.

Because Ramos barred the use of a discriminatory

scheme, it announced a substantive rule rendering

convictions obtained under that scheme “illegal and

void.” Ex parte Siebold, 100 U.S. 371, 376 (1880). The

Court must apply this substantive rule retroactively.

III.

Teague Does Not Preclude Retroactivity of

New Rules Barring Unconstitutional

Discriminatory Harm.

A. The Goals of the Ramos Rule Eclipse the

Concerns with Retroactivity Espoused

in Teague.

Regardless of how the Court categorizes the Ramos

rule, it does not implicate the concerns that underlie

Teague’s presumption against retroactivity. That

presumption was based on the Court’s concern with

finality and comity.

Teague, 489 U.S. at 308.

Likewise, Teague’s exceptions embody concern for “the

liberty interests of those imprisoned pursuant to rules

later deemed unconstitutional.” Montgomery, 136

S. Ct. at 736. These same aims support granting rules

against discrimination retroactive effect regardless of

whether they fit within Teague’s definition of

“procedural” or “substantive.” Instead, because here,

as on direct review, “the interests and finality and

24

comity that caused [the Court] to implement the

Teague standards of retroactivity are not at issue,” or

at minimal issue, the “only demands with which [the

Court] need . . . concern [itself] are those of the

Constitution.” Johnson v. Texas, 509 U.S. 350, 378

(1993).

The interest in finality that militated against

retroactivity in Teague, 489 U.S. at 307, is minimal

here because “[t]here is little societal interest in

permitting the criminal process to rest at a point where

it ought properly never to repose.” Mackey v. United

States, 401 U.S. 667, 693 (1971) (Harlan, J., concurring

in part and dissenting in part). Though Justice Harlan

was referring to “substantive” rules, the same principle

applies in the context of discrimination: the criminal

process should not “rest” at the conclusion of a process

started with discriminatory intent and that produced

discriminatory effects.

The importance of finality derives from the interest

in preserving the deterrent effect of criminal law,

Teague, 489 U.S. at 308–309, the risk of a less reliable

result upon retrial, see McCleskey v. Zant, 499 U.S.

467, 491 (1991), and the “costs imposed” on states of

resulting collateral post-conviction review. Teague, 489

U.S. at 310 (quoting Solem v. Stumes, 465 U.S. 638,

654 (1984)). These interests are undermined, not

advanced, by denying retroactive effect to rules barring

discrimination.

First, deterrence cannot be achieved through nonretroactivity because discrimination undermines the

legitimacy of the criminal justice system. E.g., Rose,

443 U.S. at 555–557; J.E.B., 511 U.S. at 139–140.

25

Deterrence works by sending a message that those who

violate the law—and only those who violate the

law—will be punished. Meting out and maintaining

arbitrary, race-based convictions sends the opposite

message.

Second, reliability of the verdict is advanced by

retroactivity because discrimination in the criminal

justice system necessarily undermines the reliability of

the original result. The non-unanimous jury system,

established to inject race-based inaccuracy into the

criminal justice process, spawns unreliability.

Additionally, the Court should recognize that

preserving convictions obtained under laws designed

with an intent that is constitutionally repugnant can

never correspond with the fundamental value

undergirding the interest in finality. At its essence,

the interest in finality is an interest in maintaining the

integrity of the criminal justice system. See Teague,

489 U.S. at 308–310. Although they often align, these

interests are not always in lockstep. If an underlying

proceeding denies a defendant his fair day in court

because of a racially discriminatory law, the decision to

leave the defendant’s conviction untouched stands only

to diminish, not enhance, the public’s faith in the

integrity of the system.

Nor should convictions obtained pursuant to

discriminatory laws be entitled to comity. “Comity”

entails the “proper respect for state functions.” Preiser

v. Rodriguez, 411 U.S. 475, 491 (1973) (quoting

Younger v. Harris, 401 U.S. 37, 44 (1971)). It is also

animated by the desire to “avoid retrials, some of

which, held so late in the day, may lead to freedom for

26

some petitioners whose initial convictions were in fact

unaffected by the errors that took place at their initial

trials.” O’Neal v. McAninch, 513 U.S. 432, 443 (1995).

Neither of these aspects of comity are advanced by

continued respect for convictions obtained under a

racially discriminatory rule. “State functions” are not

entitled to respect when they are animated by racist

aims and produce racist results. Nor is the concern

over inaccurate results on re-trial worth consideration

where the initial trials were tainted by a

fundamentally inaccurate system and racial prejudice.

Finally, Ramos implicates the liberty interests of

the incarcerated—the same concern underlying the

Teague exceptions—and here, those liberty interests

outweigh any costs imposed on the states. The

“interests of those imprisoned pursuant to rules later

deemed unconstitutional” are especially pronounced in

cases such as this one where those rules inflicted the

indignities of discrimination upon the defendant.

Montgomery, 136 S. Ct. at 736. In those instances, the

harm is compounded because imprisonment is a daily

“assertion of [the individual’s] inferiority.” Strauder,

100 U.S. at 308. Here, those interests outweigh those

of the states because, as Justice Gorsuch observed

during oral argument in Ramos, the states’ reliance

interests should not compel the Court to “forever

ensconce an incorrect view of the United States

Constitution in perpetuity, for all states and all people,

denying them the right that we believe was originally

given to them.”14

14

Ramos Oral Arg. Trans. 58:6-10, available at

https://www.supremecourt.gov/oral_arguments/argument_transc

ripts/2019/18-5924_4gcj.pdf.

27

It is unthinkable “to perpetuate something we all

know to be wrong only because we fear the consequence

of being right.” 140 S. Ct. at 1408. In these cases, the

interests in finality and comity “must yield to the

imperative of correcting a fundamentally unjust

incarceration.” Engle v. Isaac, 456 U.S. 107, 135

(1982).

B. Batson v. Kentucky Is Distinguishable.

The Court’s rejection of retroactivity for Batson v.

Kentucky, 476 U.S. 79 (1986), which also concerned

race discrimination in the context of juries, is not at

odds with the above analysis. Ramos differs from

Batson in several ways.

First, Ramos’s retroactivity must be decided under

Teague’s framework whereas Batson’s retroactivity was

decided before Teague in Allen v. Hardy, 478 U.S. 255

(1986), under the framework that Teague overturned.

Teague, 489 U.S. at 295. Although Teague held that

Allen prevented the petitioner from arguing Batson’s

retroactivity, that aspect of Teague reflects more the

doctrine of stare decisis than vitality of the reasoning in

Allen.

Second, Batson is distinguishable because the nonunanimous jury rule vitiates the accuracy of criminal

trial outcomes where Batson merely had “some

bearing” on it. Allen, 478 U.S. at 259. Allen found that

Batson was not retroactive specifically because the

Batson rule only somewhat improved the accuracy of

criminal trials. Id. (“By serving a criminal defendant’s

interest in neutral jury selection procedures, the rule in

28

Batson may have some bearing on the truthfinding

function of a criminal trial.”) (emphasis added).

In other words, Batson, which simply adjusted the

evidentiary standard to establish discrimination in

peremptory strikes, did not create a sea change that

would result in radically more reliable case outcomes.

Ramos, conversely, involves a new rule to enhance

accuracy and improve fact-finding in criminal trials by

eliminating laws based in racism. Before Ramos,

Louisiana’s and Oregon’s rules allowing criminal

convictions by non-unanimous juries were designed

explicitly to thwart both the accuracy and truth-finding

functions of trials “to establish the supremacy of the

white race”: “courts in both Louisiana and Oregon

have frankly acknowledged that race was a motivating

factor in the adoption of their States’ respective

nonunanimity rules.” Ramos, 140 S. Ct. at 1394.

Because procedural rules can be applied retroactively

only where they “implicat[e] the fundamental fairness

and accuracy of the criminal proceeding,” Montgomery,

136 S. Ct. at 728, this difference alone is dispositive.

Third, Batson concerned individual choices by

prosecutors in specific cases, not a discriminatory

statutory framework fundamental to the jury system.

Accordingly, giving Batson retroactive effect would

have implicated Teague’s concern with finality. In each

petition for post-conviction relief under a retroactive

Batson, a court would first need to determine whether

the facts supporting a Batson violation existed. Given

that prior to Batson prosecutors were generally not

questioned on individual juror strikes, courts

considering habeas petitions would have had to guess

29

at a prosecutor’s thought processes from years prior.

But Ramos, if held retroactive, would require no such

additional fact-finding because all non-unanimous jury

convictions arrived under the old rule are

constitutionally suspect. See id. at 1395 (emphasizing

intrinsic value of unanimity).

Likewise, retroactivity for Batson would have

imposed significant costs on states, as the state’s

judiciary and prosecutors would have had to handle not

only the habeas petitions and resulting new trials, but

also new fact-finding as to whether discrimination

occurred in the first instance.

By contrast,

retroactivity for Ramos’s rule would not impose these

additional fact-finding burdens—and the ordinary

burdens it would impose would affect only two states.

Finally, though announcing a “new rule,” Batson did

not create a “categorical constitutional guarantee[],”

Montgomery, 136 S. Ct. at 729, but rather adjusted the

“evidentiary showing necessary to make out a prima

facie case” of the existing right against race

discrimination in jury selection. Teague, 489 U.S. at

295. By contrast, Ramos established a flat right to a

unanimous jury verdict. This is precisely the sort of

“sweeping and fundamental” rule Teague contemplated

to be retroactive. Beard v. Banks, 542 U.S. 406, 418

(2004).

30

IV.

As in Other Contexts, Victims of Racial

Discrimination Must Be Restored to “the

Position They Would Have Occupied” but

for the Discrimination.

Because the non-unanimous jury system was

designed with discriminatory intent and had

discriminatory effects, the Court should look for

guidance to its Equal Protection Clause jurisprudence.

These principles counsel that those who have been

deprived of their freedoms and subjected to the stigma

of discriminatory systems must be provided the

opportunity to return to “the position they would have

occupied” but for the law’s invidious effects. United

States v. Virginia, 518 U.S. 515, 547 (1996) (quoting

Milliken, 433 U.S. at 280). In cases where those

affected by discriminatory laws are confined by final

convictions, retroactivity is the only means to wipe

clean the criminal justice system of the stains of

prejudice.

Teague explained that “which cases are closed, for

which retroactivity-related purposes, and under what

circumstances” may differ depending on “certain

special concerns” in various contexts. Reynoldsville

Casket Co. v. Hyde, 514 U.S. 749, 758 (1995). One such

“special concern” not elucidated by the Court in Teague,

but informed by the Court’s precedents, is the need to

provide a remedy for the ongoing harms of

discriminatory laws.

When declaring a law

unconstitutional leaves in place a wrong caused by that

law’s prior effect, the natural conclusion is “that some

remedy must be provided.” See id. at 760 (Scalia, J.,

concurring). In such cases, it “makes sense to speak of”

31

the Court’s “remedial discretion” in relation to

retroactivity. Id. Whether “the ordinary application of

a new rule of law ‘backwards’ . . . involve[s] a further

matter of remedies” will “depend . . . upon the kind of

case, matter, and circumstances involved.” Id. at

744–755.

The instant case, which involves the staying power

of laws with a discriminatory purpose, is precisely the

situation for which this Court’s “remedial discretion” is

most appropriate.

While this Court’s decision in

Ramos rightfully resolved the issue of non-unanimous

juries moving forward, it must also retroactively

resolve the decades of racially disparate effects caused

by laws this Court recognized were designed with an

invidious purpose.

To resolve these lasting effects, the Court should

apply Ramos retroactively. The principles of equal

protection command special consideration for

“eliminat[ing] [] the discriminatory effects of the past.”

Virginia, 518 U.S. at 547 (quoting Louisiana v. United

States, 380 U.S. 145, 154 (1965)). To remedy these

effects, the Court must “shape[]” an appropriate

remedy that “place[s] persons unconstitutionally

denied an opportunity or advantage in ‘the position

they would have occupied’” but for the discrimination.

Virginia, 518 U.S. at 547 (quoting Milliken, 433 U.S. at

280).

Louisiana v. United States, 380 U.S. 145 (1965), is

on point. Louisiana invalidated the voter registration

“interpretation test” designed “to keep white citizens in

control” by making it harder for Black residents to

register to vote. Id. at 149. The Court found it

32

necessary to examine the lasting effects caused by the

discriminatory intent. Rather than merely barring the

discriminatory system and leaving Black voters

without a restorative remedy, the Court ruled that all

eligible Black voters impacted by the interpretation

test would be registered to vote before any new

registration requirements were put in place. Id. at 155.

This remedy fully comported with the Court’s “duty . . .

so far as possible [to] eliminate the discriminatory

effects of the past as well as bar like discrimination in

the future.” Id. at 154 (emphasis added).

Though this case concerns criminal justice, it

implicates the same constitutional principle of nondiscrimination. Just like the test in Louisiana, the

non-unanimous jury law was instituted to “establish

the supremacy of the white race.” Ramos, 140 S. Ct. at

1394.

In fact, the discriminatory procedure in

Louisiana had its origins in the same 1898 Louisiana

Constitution responsible for Louisiana’s nonunanimous jury system. See 380 U.S. at 147–148.

In Ramos, this Court examined the same

“uncomfortable past” it examined in Louisiana and

arrived at the right decision. Ramos, 140 S. Ct. at 1401

n.44. As in Louisiana, striking down the offending

statute will not root out past discrimination. Now, as

in Louisiana, the Court must look to the uncomfortable

present.

It must recognize that in cases like

Petitioner’s, retroactive application is necessary to

fulfill the Court’s “duty” to “eliminate the

discriminatory effects of the past” as they persist in the

present. Louisiana, 380 U.S. at 154.

33

Louisiana is no outlier. In the same spirit, lower

courts have corrected for histories of discrimination by

giving newly recognized constitutional rights

retroactive effect. For example, Obergefell v. Hodges,

135 S. Ct. 2584 (2015), which held that bans on samesex marriage violated the Equal Protection Clause, id.

at 2602, has been repeatedly held to apply

retroactively. See, e.g., Hard v. Attorney Gen., 648 Fed.

App’x 853, 856 (11th Cir. 2016); Ranolls v. Dewling,

223 F. Supp. 3d 613, 622 (E.D. Tex. 2016); In re State,

489 S.W.3d 454, 457 (Tex. 2016) (implicitly applying

Obergefell retroactively).

Similarly, courts have

applied United States v. Windsor, 570 U.S. 744 (2013),

retroactively. See, e.g., Schuett v. FedEx Corp., 119

F. Supp. 3d 1155, 1165 (N.D. Cal. 2016).

Equal protection demands that the effects of racially

discriminatory laws be “eliminated root and branch.”

Green v. Cty. Sch. Bd. of New Kent Cty., 391 U.S. 430,

437–438 (1968). That principle is a “special concern” of

the Court’s Equal Protection Clause jurisprudence, cf.

Teague, 489 U.S. at 310, and it should guide the Court

to exercise its “remedial discretion,” Hyde, 514 U.S. at

760 (Scalia, J., concurring), in applying Ramos

retroactively.

CONCLUSION

For all of the above reasons, amici urge that the

Court give retroactive effect to the rule announced in

Ramos v. Louisiana.

34

Respectfully submitted,

MATTHEW O. GATEWOOD

Counsel of Record

ADAM C. POLLET

ALEXA R. SHOCKLEY

EVERSHEDS SUTHERLAND (US) LLP

700 Sixth Street, NW, Suite 700

Washington, DC 20001-3980

(202) 383-0100

KRISTEN CLARKE

JON M. GREENBAUM

ARTHUR AGO

NOAH BARON

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1500 K St. NW, Suite 900

Washington, DC 20005

mattgatewood@eversheds-sutherland.us (202) 662-8600

MICHAEL BOLDT

EVERSHEDS SUTHERLAND (US) LLP

One American Center

600 Congress Avenue, Suite 2000

Austin, TX 78701

(512) 721-2700

JOHN H. FLEMING

MICHELLE T. MCINTYRE

EVERSHEDS SUTHERLAND (US) LLP

999 Peachtree Street, NE

Suite 2300

Atlanta, GA 30309-3996

(404) 853-8000

ALEXANDRA M. LOUDERBACK

EVERSHEDS SUTHERLAND (US) LLP

500 Capitol Mall #1750

Sacramento, CA 95814

(916) 241-0500

Counsel for Amici Curiae