Juries Less Than 12

In its 2020 decision in Ramos v. Louisiana, the Supreme Court held that nonunanimous juries are unconstitutional in the guilt phase of criminal trials, and no doubt to the finding of sentencing factors to which the right of jury trial extends under the Apprendi rule. The high court did so despite the heavy reliance of two states on its contrary decision on the precise point nearly a half century earlier.

Last week, two Justices fired a shot across the bow of the six states that still allow juries of less than twelve people. Those states would be well advised to get rid of their small juries—prospectively only—immediately, before the Supreme Court does so retroactively.

Justice Gorsuch, author of the Ramos opinion, wrote a dissent from the denial certiorari in Khorrami v. Arizona, No. 21-1553. Justice Kavanaugh also noted for the record that he would have granted certiorari in the case, something justices only do when they feel particularly strongly about an issue. Counting noses, it is not hard to figure that there will be at least five for banning small juries when the Court does finally take it up. If and when that happens, all cases then pending on direct appeal which were tried to small juries will have to be retried.

Unlike Supreme Court criminal law decisions since Griffith v. Kentucky, legislation can apply prospectively only, minimizing the damage. Such a bill can expressly state that it applies only to cases tried after the effective date. None of those cases will need to be retried if and when the Supreme Court finally disallows small juries. If the legislation predates the decision far enough, all of the small-jury cases will be final on appeal and none will have to be retried.

I urge prosecutors’ associations in the six states to support such legislation to minimize and possibly eliminate the massive waste of public resources that would come from a retroactive mandate.

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