There’s been a lot of discussion about the implications of Blakely v. Washington (decided last Thursday) for various sentencing schemes; I have nothing to add to that. But I did want to flag one issue: What does Justice Scalia’s opinion suggest about nonunanimous and less-than-12-member criminal juries?
When most people think of the right to trial by criminal jury, I suspect they think of unanimous 12-member juries. But the Supreme Court has held that the constitution generally does not require either a 12-member jury, or that the 12-member jury be unanimous. (Smaller 6-member juries do have to be unanimous.) Oddly, the unanimity requirement has been applied to federal juries, because of a one-Justice concurrence by Justice Powell in the early 1970s. (This is one of the few ways in which the Bill of Rights has been applied differently to states via the Fourteenth Amendment than to the federal government.) For the key cases on this, see Apodaca v. Oregon, Johnson v. Louisiana, and Williams v. Florida; the nonunanimous jury cases were 5-4 (Justices Douglas, Brennan, Stewart, and Marshall dissenting), and the less-than-12-member jury case was 8-1 (Justice Marshall dissenting). In practice, as I understand it, the unanimity requirement is the norm in nearly all states, and most states use twelve-member juries (at least in fairly serious cases). But according to the Court’s precedents, that’s not a constitutional command.
Justice Scalia’s majority opinion in Blakely, though, twice quotes Sir William Blackstone’s 1765 formulation of the jury trial right as providing for “the unanimous suffrage of twelve of his equals and neighbours.” Both times, the opinion mentions this while discussing what the Jury Trial Clause of the Sixth Amendment (incorporated against the states via the Fourteenth Amendment) commands.
Now the Court is of course only talking about the scope of the jury trial guarantee — the extent to which it applies to sentencing factors — and not the size or voting requirements of the jury. Many or all of the Justices in the majority might not have seriously considered whether the “unanimous suffrage of twelve” requirement really should be a constitutional command.
Still, the opinion, especially its references to Blackstone, does stress the importance of the guarantee’s original meaning, and does take the view that the Sixth Amendment generally constitutionalizes the common-law jury trial right. This suggests that at least some Justices — and perhaps a majority — may be willing to revisit the nonunanimous jury issue (which, as I mentioned, was 5-4 when the Court decided the matter, and on which a change of course would affect only a few states) or even the jury size issue.
Incidentally, for whatever it’s worth, at least one news account (by David Savage in the L.A. Times) also thought the unanimity reference was important, though without discussing the details I mention above.
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