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May 4, 2020

SCOTUS wastes no time taking up new case to address whether new Ramos jury unanimity rule is retroactive

In the US Supreme Court's Sixth Amendment unanimous jury ruling a couple of weeks ago, Ramos v. Louisiana, No. 18–5924 (S. Ct. April 20, 2020) (available here, basics here), a couple of the Justices already started debating whether the ruling would be give retroactive effect.  Interestingly, this new SCOTUS order list includes this new certiorari grant revealing that the Justices were eager to formally take up this issue before lower courts even had a chance to try to hash it out:


The motion of petitioner for leave to proceed in forma pauperis is granted, and the petition for a writ of certiorari is granted limited to the following question: Whether this Court’s decision in Ramos v. Louisiana, 590 U. S. ___ (2020), applies retroactively to cases on federal collateral review.

Long-time readers should know that I generally view getting matters "right" in the criminal justice system as much more important than keeping that which is wrong "final."  (This is especially true  in the sentencing area as I explained in "Re-Balancing Fitness, Fairness, and Finality for Sentences" a few years ago.)  I always believe it especially important for new substantive laws and rules to be retroactive, and Ramos is obviously "just" a procedural rule.  But I have long hoped that the Supreme Court's Teague doctrine for limiting the retroactivity of procedural rules would someday identify the long-discussed "watershed" procedural rule that implicates the fundamental fairness and accuracy of the trial and thus should be fully retroactive.  See 489 U. S. 288, 311-312 (1989) (plurality opinion).  I suspect and hope jury unanimity might prove to be just such a rule (though I am certainly not holding my breath in light of the opinions in Ramos).

Prior related posts:

May 4, 2020 at 09:55 AM | Permalink


Given the statutory restrictions on retroactivity in 2254 and prior statements from U.S. Supreme Court, I am not 100% surprised that the U.S. Supreme Court did not see any benefit to kicking this case back to the 5th Circuit. After all, Ramos only impacts the 5th and 9th Circuits and those two circuits are notoriously on the opposite end of the spectrum. So it's not like remanding these cases would give you four or five different takes on the issue. The Fifth would more likely than not find that it was not retroactive and the Ninth would more likely than not find that it is retroactive. And the delay in taking the case would also delay when the clock would start running for inmates in those two states to file petitions raising the Ramos issue if it does become retroactive.

Posted by: tmm | May 4, 2020 2:14:58 PM

Hi, I am wondering about opinions on this matter of juries , in my matter I go before a ALJ , who signs the opinion of the "board " agency . Then it goes back before the board, who vote and make determination. (on appeal a judge decided that the board is "like a jury of your peers ". So therefore all jury instructions, rules , laws, and 100% in favor apply. While the Constitution states "criminal "where is the laws for civil , that cover this . (student of pro per). Thanks if anyone has any insight on this matter

Posted by: ms nursey | May 4, 2020 4:51:13 PM

Ms. Nursey, the right to a jury trial in civil cases is under the Seventh Amendment, but that is limited to "suits at common law." The modern administrative state is a statutory creation of the past 150 years or so, and courts do not believe that administrative hearings qualify as suits at common law.

Posted by: tmm | May 4, 2020 5:15:09 PM

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