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Remembering the Important Criminal Procedure Protections We Already Have

February 17, 2016

It was big news when the National Registry of Exonerations recently released a new report, which showed that more people who had been convicted of crimes were exonerated in 2015 than in any prior year. The study reveals what many prominent public figures, including Supreme Court Justice Anthony Kennedy, have correctly recognized for some time: there are serious problems in our criminal justice system. Although this report wasn’t directly about the Constitution, the light it casts on the need for criminal justice reform is a good reminder that there are important criminal procedure protections already enshrined in our national Constitution. While those provisions don’t address all of the problems in our criminal justice system, it’s nonetheless vital that these constitutional protections be fully enforced.

One of the most important criminal procedure protections in the Constitution is found in the Sixth Amendment, which provides, among other things, that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” This right to trial by an impartial jury was of central importance to our nation’s Founders. They embraced the view, long reflected in the English common law, that the jury was a “sacred bulwark” of liberty. While the Sixth Amendment was being debated and drafted, Founding Father and Supreme Court Justice James Wilson remarked that “[t]o the conviction of a crime, the undoubting and the unanimous sentiment of the twelve jurors is of indispensable necessity.”

That’s why the Supreme Court—or at least the eight justices in the majority (Justice Alito dissented)—should be applauded for its decision earlier this year in Hurst v. Florida. In that case, the Court considered the constitutionality of Florida’s death penalty regime, which (among other problems) gave the final say on whether someone should be sentenced to death to a judge, not a jury. That scheme was inconsistent with the text and history of the Constitution, not to mention the Court’s own precedents. In recognizing that “[t]he Sixth Amendment protects a defendant’s right to an impartial jury” and that Florida’s scheme violated that right, the Court reaffirmed the importance of the Sixth Amendment’s jury protections.

But the Supreme Court doesn’t always get it right when it comes to safeguarding the important rights provided by the Sixth Amendment, not to mention other critical criminal procedure protections. In the last couple of years, the Court has refused to even hear cases raising two critical Sixth Amendment issues: whether the Sixth Amendment requires unanimous jury verdicts and whether it requires twelve-person juries. In Jackson v. Louisiana, the petitioner was sentenced to life in prison at hard labor without the possibility of parole, even though the jury was not unanimous in finding him guilty. In Irving v. Florida, after petitioner’s first trial ended in a mistrial, he was sentenced to life in prison based on the judgment of a jury composed of just six members.

What’s particularly galling about the Court’s failure to take up these two issues is that even though the Constitution’s text and history and recent Supreme Court precedent all make clear that the Sixth Amendment requires unanimous, twelve-person juries to convict, there are old Supreme Court cases on the books that say otherwise. As a result, some Americans continue to be denied the full protections of the constitutional right to a jury trial, a right that (again) was of crucial importance to the Founders. These old cases dismissed the relevance of the significant history that demonstrated that the Founders understood the jury right to require unanimous, twelve-person verdicts, even though more recent Supreme Court cases have made clear how wrong that view was. These more recent cases explain that the Sixth Amendment “seeks fairness . . . through very specific means . . . that were the trial rights of Englishmen” and that what matters is the “Framers’ paradigm for criminal justice.”

What’s more, the Supreme Court has in more recent cases acknowledged what that history makes clear: “trial by jury has been understood to require that ‘the truth of every accusation . . . should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbours.’” But because the Court said this in the context of resolving a different issue, it was what lawyers call dicta and not binding on other courts. The Supreme Court needs to take cases presenting these issues to make what it has repeatedly said in dicta the law of the land, and yet it has refused to do so. As a result, individuals have been convicted and, in some cases, sentenced to life in prison, even though they did not enjoy the full protections of the Sixth Amendment to which they were entitled.

It is worth noting, especially in light of the new report on exonerations, that these Sixth Amendment protections can have a material impact on the quality of jury decision making and thus the likelihood that individuals will be wrongly convicted. After all, juries are the bodies charged with weighing conflicting evidence, assessing the credibility of witnesses, and making the numerous other judgments necessary to determine whether an individual should be convicted of a crime. Empirical evidence has demonstrated that the quality of jury decision making is improved when juries are larger, and the same is true with respect to the unanimity requirement. As the American Bar Association has explained, “where unanimity is required, jurors evaluate evidence more thoroughly, spend more time deliberating and take more ballots.” This empirical evidence confirms the Framers’ fundamental insight, articulated by John Adams several years before the Sixth Amendment was adopted, that “it is the unanimity of the jury that preserves the rights of mankind.”

As the national conversation about the need for criminal justice reform continues (as well it should), there will be many different proposals put on the table, and some no doubt will be adopted. But we also should not forget the importance of fully enforcing the very important criminal procedure protections that we already have: those in the Bill of Rights.