In 12 Angry Men, a jury deliberates a death penalty case against a young boy. Only one juror votes "not guilty," while the rest lazily accept the prosecution's story. Because juries in criminal cases must be unanimous, the lone juror holds up the process and eventually convinces the rest of the jurors to spare the boy's life.

But what if America allowed the jury to just convict over the lone dissenter?

Well, in some states they can, and the Supreme Court isn't going to do anything about it.


This morning, the Supreme Court decided not to hear arguments on a litany of lower court decisions (by rule, 4 justices must agree to take up a specific case). Among the cases that the Supreme Court decided to ignore was Jackson v. Louisiana. While it's now just a line item in a list of cases tossed aside by the Court, what the Supreme Court really did today was offer its tacit approval to states to ignore everything you thought you knew from high school civics class and put people in jail even though some members of the jury simply weren't convinced beyond a reasonable doubt.

It's just a whole lot more convenient to lower the bar for conviction if you're the sort of state with a private prison industry that needs to justify its largesse. Like, say, Louisiana, who imprisons more of its people per capita than any other state... in the country that imprisons more of its people per capita than any other country.

Ortiz T. Jackson was convicted of murder in Louisiana in 2008 and sentenced to life of hard labor a la Cool Hand Luke. The wrinkle is that the jury convicted him by a 10-2 vote. As it turns out, Louisiana, along with my home state of Oregon, both allow juries to convict over the objections of dissenters.


Putting aside the Constitution for a second, a 10-2 verdict would seem to fly in the face of the requirement that the government prove its case beyond a reasonable doubt as a simple matter of logic. The standard isn't "beyond about a twenty percent doubt" for a reason. If two jurors can't be convinced of guilt, the government would seem to have failed its burden.

Moreover, it's not just about failing to convince all 12 jurors out of the gate. The drama of 12 Angry Men comes from the fact that when a jury is required to reach a unanimous conclusion it forces jurors to engage in serious deliberations. In fact, studies show that a unanimity requirement has the psychological effect of focusing jurors more thoroughly on the evidence in the case. Add to the mix the presence of complicated affirmative defenses — such as entrapment — and a less sophisticated jury could easily say, "but he did it... case closed," without wading into the complexity of why the law may demand an acquittal anyway without dissenters forcing the issue.

But given that this is the Supreme Court, wouldn't the Constitution weigh more heavy than either logic or fancy psychological studies? Well, you'd think so, but the problem for the Supreme Court is a curious decision from the 1970s that literally makes no sense.

The Sixth Amendment to the Constitution was generally understood by its Framers' — and everyone else for that matter — to require unanimous juries. But these two states get away with short-cutting the Sixth Amendment because in 1972, the Supreme Court decided Apodaca v. Oregon. In a split 4-1-4 decision, the Court decided that unanimity isn't required — which is just about the most ironic thing ever. Even though 5 justices actually ruled that unanimity was required. The problem was Justice Lewis Powell, who rambled something about the Sixth Amendment imposing stricter requirements on the federal government than it would on the states (per the Fourteenth Amendment, which theoretically imposes all those Bill of Rights things on the states).

Leaving us with the zombie result that allowed Louisiana and Oregon could keep throwing people in the clink in violation of the Sixth Amendment.

The members of the Supreme Court had an opportunity to address that today. At least six of the nine declined.