No. 19-5807

In the Supreme Court of the United States__________________

THEDRICK EDWARDS,Petitioner,

v.

DARREL VANNOY, WARDEN,Respondent.

__________________

On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

__________________

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

UNDER LAW AND THE CENTER FOR CONSTITUTIONAL

RIGHTS AS AMICI CURIAE SUPPORTING PETITIONER __________________

MATTHEW O. GATEWOOD

Counsel of RecordADAM C. POLLET

ALEXA R. SHOCKLEY

EVERSHEDS SUTHERLAND (US) LLP700 Sixth Street, NW, Suite 700Washington, DC 20001-3980(202) 383-0100 mattgatewood@eversheds-sutherland.us

MICHAEL BOLDT

EVERSHEDS SUTHERLAND (US) LLPOne American Center 600 Congress Avenue, Suite 2000Austin, TX 78701(512) 721-2700

KRISTEN CLARKE

JON M. GREENBAUM

ARTHUR AGO

NOAH BARON

LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1500 K St. NW, Suite 900Washington, DC 20005(202) 662-8600

JOHN H. FLEMING

MICHELLE T. MCINTYRE

EVERSHEDS SUTHERLAND (US) LLP999 Peachtree Street, NESuite 2300Atlanta, GA 30309-3996(404) 853-8000

ALEXANDRA M. LOUDERBACK

EVERSHEDS SUTHERLAND (US) LLP500 Capitol Mall #1750Sacramento, CA 95814(916) 241-0500

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. Non-Unanimous Jury Systems “SeriouslyDiminish” Accuracy of Convictions in aRacially Discriminatory Way, Triggering aTeague Exception. . . . . . . . . . . . . . . . . . . . . . . 3

A. Non-Unanimous Jury Systems WereCreated for Racially DiscriminatoryPurposes . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Louisiana Created Its Law ToEliminate the Influence of BlackJurors . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. Oregon Created Its Law To Eliminatethe Influence of Non-White andImmigrant Jurors . . . . . . . . . . . . . . . . . 8

B. Introduction of Racial Bias into theCriminal Justice System Necessarily“Seriously Diminish[es]” Accuracy . . . . . 10

C. Non-unanimous Jury Systems HaveProduced Wrongful Convictions,Disproportionately So for MinorityDefendants . . . . . . . . . . . . . . . . . . . . . . . . 12

1. Exonerations . . . . . . . . . . . . . . . . . . . . 13

ii

2. High Rate of Non-Unanimous JuryConvictions . . . . . . . . . . . . . . . . . . . . . 16

3. High Rate of Incarceration for RacialMinorities . . . . . . . . . . . . . . . . . . . . . . 19

II. New Rules Barring Racial DiscriminationAre Substantive Under Teague. . . . . . . . . . . 20

III. Teague Does Not Preclude Retroactivity ofNew Rules Barring UnconstitutionalDiscriminatory Harm . . . . . . . . . . . . . . . . . . 23

A. The Goals of the Ramos Rule Eclipse theConcerns with Retroactivity Espoused inTeague. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. Batson v. Kentucky Is Distinguishable . . 27

IV. As in Other Contexts, Victims of RacialDiscrimination Must Be Restored to “thePosition They Would Have Occupied” but forthe Discrimination. . . . . . . . . . . . . . . . . . . . . 30

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

iii

TABLE OF AUTHORITIES

CASES

Allen v. Hardy, 478 U.S. 255 (1986). . . . . . . . . . . . . . . . . . . . . . . 27

Ballard v. United States, 329 U.S. 187 (1946). . . . . . . . . . . . . . . . . . . . . . . 22

Batson v. Kentucky, 476 U.S. 79 (1986). . . . . . . . . . . . . . . . 3, 27, 28, 29

Beard v. Banks, 542 U.S. 406 (2004). . . . . . . . . . . . . . . . . . . . . . . 29

Engle v. Isaac, 456 U.S. 107 (1982). . . . . . . . . . . . . . . . . . . . . . . 27

Espinoza v. Montana Dep’t of Revenue, No. 18-1195 (U.S. Jun. 30, 2020) . . . . . . . . . . . . . 4

Ex parte Siebold, 100 U.S. 371 (1880). . . . . . . . . . . . . . . . . . . . . . . 23

Graham v. Collins, 506 U.S. 461 (1993). . . . . . . . . . . . . . . . . . . . . . . 11

Green v. Cty. Sch. Bd. of New Kent Cty., 391 U.S. 430 (1968). . . . . . . . . . . . . . . . . . . . . . . 33

Hard v. Attorney Gen., 648 Fed. App’x 853 (11th Cir. 2016). . . . . . . . . . 33

Heckler v. Mathews, 465 U.S. 728 (1984). . . . . . . . . . . . . . . . . . . . . . . 21

Hunter v. Underwood, 471 U.S. 222 (1985). . . . . . . . . . . . . . . . . . . . . . . 20

iv

Hurst v. Florida, 136 S. Ct. 616 (2016). . . . . . . . . . . . . . . . . . . . . . 15

In re State, 489 S.W.3d 454 (Tex. 2016) . . . . . . . . . . . . . . . . 33

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). . . . . . . . . . . . . . . . . . . . 22, 24

Johnson v. Texas, 509 U.S. 350 (1993). . . . . . . . . . . . . . . . . . . . . . . 24

Louisiana v. Hankton, 122 So. 3d 1028 (La. Ct. App. 4th Cir. 2013) . . . . 5

Louisiana v. United States, 380 U.S. 145 (1965). . . . . . . . . . . . . . . . . 31, 32, 33

Mackey v. United States, 401 U.S. 667 (1971). . . . . . . . . . . . . . . . . . . . . . . 24

McCleskey v. Zant, 499 U.S. 467 (1991). . . . . . . . . . . . . . . . . . . . . . . 24

Milliken v. Bradley, 433 U.S. 267 (1977). . . . . . . . . . . . . . . . . . 3, 30, 31

Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982). . . . . . . . . . . . . . . . . . . . . . . 22

Montgomery v. Louisiana, 136 S. Ct. 718 (2016). . . . . . . . . . . . . . . . . . passim

O’Neal v. McAninch, 513 U.S. 432 (1995). . . . . . . . . . . . . . . . . . . . . . . 26

Obergefell v. Hodges, 135 S. Ct. 2584 (2015). . . . . . . . . . . . . . . . . . . . . 33

v

Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017). . . . . . . . . . . . . . . . . . . 11, 18

Penry v. Lynaugh, 492 U.S. 303 (1989). . . . . . . . . . . . . . . . . . . . . . . 20

Powers v. Ohio, 499 U.S. 400 (1991). . . . . . . . . . . . . . . . . . . . . . . 22

Preiser v. Rodriguez, 411 U.S. 475 (1973). . . . . . . . . . . . . . . . . . . . . . . 25

Ramos v. Louisiana, 140 S. Ct. 1390 (2020). . . . . . . . . . . . . . . . . passim

Ranolls v. Dewling, 223 F. Supp. 3d 613 (E.D. Tex. 2016). . . . . . . . . 33

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995). . . . . . . . . . . . . . . . . 30, 31, 33

Ring v. Arizona, 536 U.S. 584 (2002). . . . . . . . . . . . . . . . . . . . . . . 14

Roberts v. United States Jaycees, 468 U.S. 609 (1984). . . . . . . . . . . . . . . . . . . . . . . 21

Rose v. Mitchell, 443 U.S. 545 (1979). . . . . . . . . . . . . . 11, 22, 23, 24

Saffle v. Parks, 494 U.S. 484 (1990). . . . . . . . . . . . . . . . . . . . . . . 10

Schriro v. Summerlin, 542 U.S. 348 (2004). . . . . . . . . . . . . . . . . . . . . 4, 20

Schuett v. FedEx Corp., 119 F. Supp. 3d 1155 (N.D. Cal. 2016). . . . . . . . 33

vi

Solem v. Stumes, 465 U.S. 638 (1984). . . . . . . . . . . . . . . . . . . . . . . 24

State v. Bradley Holbrook, (Yamhill Cty. 2002). . . . . . . . . . . . . . . . . . . . . . . 14

State v. Catina Curley, Orleans Parish Case No. 491-907 . . . . . . . . . . . 14

State v. Joshua Horner, (Deschutes Cty. 2017) . . . . . . . . . . . . . . . . . . . . . 14

State v. Pamela Reser, No. CR98654B (Yamhill Cty. 1999) . . . . . . . . . . 14

State v. Poole, 292 So. 3d 694 (Fla. 2020) . . . . . . . . . . . . . . . . . 15

State v. Royal Clark, Jefferson Parish Case No. 02-895 . . . . . . . . . . . 14

State v. Williams, No. 15–CR–58698 (C. C. Ore., Dec. 15, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 10, 17

State ex rel. Smith v. Sawyer, 501 P.2d 792 (Ore. 1972) . . . . . . . . . . . . . . . . . . 16

Strauder v. West Virginia, 100 U.S. 303 (1880). . . . . . . . . . . . . . . . . . 4, 22, 26

Teague v. Lane, 489 U.S. 288 (1989). . . . . . . . . . . . . . . . . . . passim

United States v. Virginia, 518 U.S. 515 (1996). . . . . . . . . . . . . . . . . . 3, 30, 31

vii

United States v. Windsor, 570 U.S. 744 (2013). . . . . . . . . . . . . . . . . . . . . . . 33

Whorton v. Bockting, 549 U.S. 406 (2007). . . . . . . . . . . . . . . . . . . . 10, 11

Younger v. Harris, 401 U.S. 37 (1971). . . . . . . . . . . . . . . . . . . . . . . . 25

OTHER AUTHORITIES

33 Cong. Rec. 1063 (1900) . . . . . . . . . . . . . . . . . . . . . 8

Acts Passed by the General Assembly of the State ofLouisiana at the Regular Session (New Orleans,E.A. Brandao 1880). . . . . . . . . . . . . . . . . . . . . . . . 7

Jeff Adelson, et al., How an Abnormal LouisianaLaw Deprives, Discriminates and DrivesIncarceration: Tilting the Scales, The Advocate(Apr. 1, 2018), https://www.theadvocate.com/ baton_rouge/news/courts/article_16fd0ece-32b1-11e8-8770-33eca2a325de.html . . . . . . . . . . . . . . 17

Thomas Aiello, Jim Crow’s Last Stand: Nonunanimous Criminal Jury Verdicts inLouisiana (2015) . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7

Douglas A. Blackmon, Slavery by Another Name:The Re-Enslavement of Black Americans fromthe Civil War to World War II (2009) . . . . . . . . . . 6

Brief of Amicus Curiae from Innocence Project NewOrleans and the Innocence Project, Ramos v.Louisiana, 2019 WL 2563177 (U.S. 2019) (No.18-5924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

viii

Brief of Amicus Curiae from Prominent and FormerState Executive and Judicial Officers, LawProfessors, and the OCDLA, Ramos v.Louisiana, 2019 WL 2563177 (U.S. 2019) (No.18-5924). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Nathan Cardon, “Less than Mayhem”: Louisiana’sConvict Lease, 1864-1901, Louisiana History:The Journal of the Louisiana HistoricalAssociation (2017) . . . . . . . . . . . . . . . . . . . . . . . . . 6

Mark T. Carleton, The Politics of the Convict LeaseSystem in Louisiana: 1868-1901, LouisianaHistory: The Journal of the Louisiana HistoricalAssociation (1967) . . . . . . . . . . . . . . . . . . . . . . . . . 6

Glenn Davis, Jr., Wrongfully Convicted by Non-unanimous Jury, I Spent 15 Years in Prison forCrime I Didn’t Commit, The Advocate (Oct. 1,2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Death Penalty Information Center, DPIC Analysis: Exoneration Data Suggests Non-UnanimousDeath-Sentencing Statutes Heighten Risk ofWrongful Convictions, (Mar. 13, 2020),https://deathpenaltyinfo.org/news/dpic-analysis-exoneration-data-suggests-non-unanimous-death-sentencing-statutes-heighten-risk-of-wrongful-convictions. . . . . . . . . . . . . . . . . . . . . . 15

Christopher Drew, Rust in the Wheels of Justice,N.Y. TIMES (Nov. 21, 2006). . . . . . . . . . . . . . . . 13

Thomas Ward Frampton, The Jim Crow Jury, 71Vand. L. Rev. 1593 (2018) . . . . . . . . . . . . . . . 5, 18

ix

Brandon Garrett, Convicting the Innocent: WhereCriminal Prosecutions Go Wrong (Harvard Univ.Press 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Samuel R. Gross & Michael Shaffer, Nat’l Registryof Exonerations, Exonerations in the UnitedStates, 1989-2012 (2012),http://www.law.umich.edu/special/exoneration/Documents/exonerations_us_1989_2012_full_report.pdf. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Jerry Kang, et al., Implicit Bias in the Courtroom,59 UCLA L. Rev. 1124 (2012). . . . . . . . . . . . . . . 18

Aliza B. Kaplan & Amy Saack, OverturningApodaca v. Oregon Should Be Easy:Nonunanimous Jury Verdicts in Criminal CasesUndermine the Credibility of Our JusticeSystem, 95 Or. L. Rev. 1 (2016) . . . . . . . . . . . . . 19

Justin D. Levinson, Forgotten Racial Equality:Implicit Bias, Decisionmaking, andMisremembering, 57 Duke L.J. 345 (2007) . . . . 18

Justin D. Levinson & Danielle Young, DifferentShades of Bias: Skin Tone, Implicit Racial Bias,and Judgments of Ambiguous Evidence, 112 W.Va. L. Rev. 307 (2010). . . . . . . . . . . . . . . . . . . . . 18

Matthew J. Mancini, One Dies, Get Another: ConvictLeasing in the American South, 1866-1928 (Univ. of S. Car. Press 1996) . . . . . . . . . . . . . . . . 6

x

Nat’l Registry of Exonerations, The First 1600Exonerations Report (2015),http://www.law.umich.edu/special/exoneration/Documents/1600_Exonerations.pdf . . . . . . . . . . 13

Ashley Nellis, The Color of Justice: Racial andEthnic Disparity in State Prison, The SentencingProject (June 14, 2016),http://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/. . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Official Journal of Proceedings of the ConstitutionalConvention of the State of Louisiana (NewOrleans, H.J. Hearsey 1898) . . . . . . . . . . . 7, 8, 21

Oregon Historical Society: The OregonEncyclopedia, Blacks in Oregon,https://oregonencyclopedia.org/articles/blacks_in_oregon/#.XwsKjEVKiM8. . . . . . . . . . . . . . . . . . 9

Ramos Oral Arg. Trans., available athttps://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-5924_4gcj.pdf . 26

Robert J. Smith & Bidish J. Sarma, How and WhyRace Continues to Influence the Administrationof Criminal Justice in Louisiana, 72 La. L. Rev.361 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 18, 19

Dan Swenson, Understanding Louisiana’sNonunanimous Jury Law Findings: Interactive,Animated Slideshow, The Advocate (Apr. 1,2018), https://www.nola.com/article_6f93e1a3-8c1d-51b0-ae77-e3980ec8decb.html . . . . . . . . . . 16

xi

James Bradley Thayer, A Preliminary Treatise OnEvidence At The Common Law (Boston, Little,Brown & Co. 1898) . . . . . . . . . . . . . . . . . . . . . . . 12

The Morning Oregonian . . . . . . . . . . . . . . . . . . . . 9, 10

The Oregon Public Defense Services Commission,On the Frequency of Non-Unanimous FelonyVerdicts In Oregon (May 21, 2009),http://www.lb7.uscourts.gov/documents/11-20911.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1

INTEREST OF AMICI CURIAE1

The Lawyers’ Committee for Civil Rights UnderLaw (Lawyers’ Committee) is a nonpartisan, non-profitcivil rights organization formed in 1963 at the requestof President Kennedy. The Lawyers’ Committee enliststhe American bar’s leadership and resources to protectand defend the civil rights of African Americans andother people of color. As part of its mission, theLawyers’ Committee works to combat racial inequitiesand the criminalization of poverty in the criminaljustice system.

The Center for Constitutional Rights (CCR) is anational non-profit legal, educational, and advocacyorganization dedicated to advancing and protecting therights guaranteed by the United States Constitutionand international law. Founded in 1966 to support thecivil rights movement in the South, CCR continues tochallenge all facets of the systemic racism embedded inthis country’s criminal justice system, which is soplainly manifested in the application of the deathpenalty.

SUMMARY OF ARGUMENT

This Court should hold that Ramos v. Louisiana,140 S. Ct. 1390 (2020), applies retroactively to cases oncollateral review for four different reasons:

1 No counsel for a party authored this brief in whole or in part, andno entity or person, other than amici curiae, or their counsel, madea monetary contribution intended to fund the preparation orsubmission of this brief. All parties have consented to the filing ofthis brief.

2

1. Ramos announced a “watershed” rule that fallsinto the exception for procedural rules under Teague v.Lane, 489 U.S. 288 (1989). Louisiana and Oregoncreated non-unanimous jury systems with theindisputable intent to introduce race-based inaccuracyinto the criminal justice system. Derived in Louisianafrom a Jim Crow-era racist fear of Black influence, andin Oregon from a racist fear of non-white andimmigrant influence, these systems have achievedtheir intended purposes of reinforcing racial inequities,subordinating racial minorities, and diminishing theaccuracy of guilty verdicts for minority defendants.

2. Under Teague, the Court’s rule in Ramos shouldbe considered a substantive one that demandsretroactive application. Non-unanimous jury systemsinflict unconstitutional racially discriminatory harm,which is beyond the power of the State to inflict. Montgomery v. Louisiana, 136 S. Ct. 718, 729 (2016). Because that harm operates independent of any risk ofwrongful conviction, Ramos recognized a substantiverule that demands retroactive application underTeague.

3. Rules barring discrimination do not implicatethe interests Teague cited as justifying non-retroactivity. The Ramos rule’s purpose—ending racialdiscrimination through unanimous verdicts—eclipsesthe goals of finality and comity espoused by Teague. The systems struck down by Ramos undermined thecriminal justice system’s goals of deterrence, reliability,and finality. Similarly, any comity interests arenegated when the underlying convictions were achievedby racist aims that produced racist results. And the

3

Ramos rule, unlike the rule announced in Batson v.Kentucky, 476 U.S. 79 (1986), is inextricable from theaims of accuracy and truth-finding in criminal trials.

4. The Equal Protection Clause requires retroactiveapplication of Ramos to restore individuals deprived oftheir freedom by racially discriminatory systems withthe opportunity to return to “the position they wouldhave occupied” but for the rule’s application. UnitedStates v. Virginia, 518 U.S. 515, 547 (1996) (quotingMilliken v. Bradley, 433 U.S. 267, 280 (1977)).

ARGUMENT

I. Non-Unanimous Jury Systems “SeriouslyDiminish” Accuracy of Convictions in aRacially Discriminatory Way, Triggering aTeague Exception.

A. Non-Unanimous Jury Systems WereCreated for Racially DiscriminatoryPurposes.

The two states to adopt non-unanimous jurysystems created them for the vile purposes of silencingminority voices and convicting minorities. This is notonly morally abhorrent but also compels the conclusionthat the bar on those systems should be retroactiveunder Teague’s exception for “‘watershed rules ofcriminal procedure’ implicating the fundamentalfairness and accuracy of the criminal proceeding.”

4

Montgomery, 136 S. Ct. at 728 (quoting Schriro v.Summerlin, 542 U.S. 348, 352 (2004)).2

The Court in Ramos emphasized the discriminatory,racist purposes of the non-unanimous jury systemwhen declaring it unconstitutional. Ramos, 140 S. Ct.at 1394 (discussing racist origins of non-unanimousjury laws); id. at 1401 (same); id. at 1408 (Sotomayor,J., concurring) (“[T]he racially biased origins of theLouisiana and Oregon laws uniquely matter here.”); id.at 1417 (Kavanaugh, J., concurring) (“In light of theracist origins of the non-unanimous jury, it is nosurprise that non-unanimous juries can make adifference in practice, especially in cases involvingblack defendants, victims, or jurors.”).3

1. Louisiana Created Its Law ToEliminate the Influence of BlackJurors.

In 1880, on the heels of the ratification of theFourteenth Amendment and passage of the CivilRights Act of 1875, the Court held in Strauder v. WestVirginia, 100 U.S. 303 (1880), that states could not bar

2 Amici agree with Petitioner that the Ramos rule is not new andtherefore retroactive. See generally Pet. Brief. Amici writeseparately, in part, to provide the Court with further analysis that,even if new, the Ramos rule is excepted under Teague. 3 Justice Alito, in dissent in Ramos, argued that this originalmotivation, though deplorable, was not relevant because such lawscould be adopted for nondiscriminatory reasons. Ramos, 140 S. Ct.at 1425–1426. Subsequently, however, he acknowledged that “Ilost, and Ramos is now precedent” for the proposition that thediscriminatory origins of statutes matter in assessing theirconstitutionality. Espinoza v. Montana Dep’t of Revenue, No. 18-1195, 35–36 (U.S. Jun. 30, 2020).

5

Black jurors. Previously, Louisiana required aunanimous jury for a felony conviction. See Louisianav. Hankton, 122 So. 3d 1028, 1031–32 n.5 (La. Ct. App.4th Cir. 2013). Once the ruling whites could not denyBlack participation on juries as a matter of law, theyhad to get creative.

Louisiana newspapers promulgated a fear thatBlack jurors simply would subvert the interests ofjustice. See Thomas Ward Frampton, The Jim CrowJury, 71 Vand. L. Rev. 1593, 1617 (2018) (quotingLouisiana newspaper articles from the relevant period). That reporting captured the racist underpinnings ofthat fear, characterizing Black jurors “as ignorant,incapable of determining credibility, and susceptible tobribery.” Robert J. Smith & Bidish J. Sarma, How andWhy Race Continues to Influence the Administration ofCriminal Justice in Louisiana, 72 La. L. Rev. 361, 376(2012). The white majority worried that Black jurorswould not vote to convict Black defendants. SeeFrampton, supra, at 1603.

Fewer convictions of Black defendants alsothreatened Louisiana’s practice of convict leasing,which involved the State leasing penal labor toplantation owners and corporations to work on farms. “The abolition of slavery changed the penitentiary froma predominantly white institution to one that wasmajority black. It changed the direction of prison workfrom industrial to agricultural labor, as whitepoliticians sought to reinstitute a form of control overits newly freed workforce.” Thomas Aiello, Jim Crow’sLast Stand: Nonunanimous Criminal Jury Verdicts inLouisiana, loc. 234 (2015) (ebook) (explaining that after

6

the Civil War, convict leasing overwhelmingly targetedBlack men); Douglas A. Blackmon, Slavery by AnotherName: The Re-Enslavement of Black Americans fromthe Civil War to World War II (2009).

Because a convict was “leased” only for the durationof his sentence, there was little-to-no economicincentive for private lessees to maintain safe workenvironments. Aiello, supra, at loc. 259–65 (“Unlike aslave system that kept workers with an owner for life,and therefore made them a long-term investment, [thelessee] had custody of his ‘slaves’ only for the durationof their sentence . . . and made the potential for [aconvict’s] illness and death that much greater.”). “Ineconomic terms, it made sense to keep the convict at asubsistence, if not lower, level. . . . ‘Before the war weowned the negroes. . . . But these convicts we don’t own‘em. One dies, get another.’” Nathan Cardon, “Lessthan Mayhem”: Louisiana’s Convict Lease, 1864-1901,Louisiana History: The Journal of the LouisianaHistorical Association 423 (2017); see also Matthew J.Mancini, One Dies, Get Another: Convict Leasing in theAmerican South, 1866-1928, 3 (Univ. of S. Car. Press1996). An official of the Prison Reform Association ofLouisiana estimated that the death rate per 1,000prisoners per year from 1893 to 1901 was more than100, which made Louisiana one of the most brutalconvict lease systems in the world. Mark T. Carleton,The Politics of the Convict Lease System in Louisiana:1868-1901, Louisiana History: The Journal of theLouisiana Historical Association 6 (1967).

In 1880, to ensure that the State had an amplesupply of convicts to sustain its convict-leasing needs,

7

particularly in light of so many convicts dying becauseof astoundingly poor conditions, the Louisianalegislature lowered the verdict requirement to allow fornon-unanimous jury decisions. See Acts Passed by theGeneral Assembly of the State of Louisiana at theRegular Session 141–142 (New Orleans, E.A. Brandao1880). “Supply had to meet demand. And so theLouisiana legislature created a new law in 1880 thatremoved the unanimity requirement. . . . The lawcreated a larger criminal population . . . and reenslavedmore and more of the state’s black population.” Aiello,supra, at loc. 267–68.

In 1898, the State adopted the non-unanimous jurysystem into the Louisiana Constitution during aconstitutional convention focused on eradicating anymeaningful civic participation of Black citizens. Seegenerally Official Journal of Proceedings of theConstitutional Convention of the State of Louisiana(New Orleans, H.J. Hearsey 1898) (“LouisianaConvention Record”). The convention adopted the rulethat only nine of twelve jurors needed to vote guilty fora conviction, ensuring that three jurors could beignored. At the time, 14.7% of jury-eligibleLouisianans were Black, making it unlikely that morethan three Black jurors would be on the same jury. SeeEx. 21 at 27, State v. Maxie, 13-CR-72522 (La. 11thJud. Dist. Ct. Oct. 11, 2018) (Testimony of Prof.Lawrence Powell); id., slip op. at 28, J.A. 57; see alsoRamos, 140 S. Ct. at 1394 (noting convention craftedrule “[w]ith a careful eye on racial demographics”).

Convention delegates did not hide their racist goals. The convention president proclaimed that the purpose

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of the convention was “to eliminate from the electoratethe mass of corrupt and illiterate voters who haveduring the last quarter of a century degraded ourpolitics.” Louisiana Convention Record, at 9. TheJudiciary Committee Chair declared that the “missionwas . . . to establish the supremacy of the white race inthis State to the extent to which it could be legally andconstitutionally done. . . .” Id. at 375; see also 33 Cong.Rec. 1063–64 (1900) (Statement of U.S. SenatorMcEnery from Louisiana describing 1898 convention asaimed at preventing “ignorant blacks” from “gettingcontrol of the State”).

Louisiana’s reenactment of the non-unanimous jurysystem in 1973 without mention of its racist origins didnot in any way sweep those origins under the rug. SeeRamos, 140 S. Ct. at 1410 (Sotomayor, J., concurring).

2. Oregon Created Its Law To Eliminatethe Influence of Non-White andImmigrant Jurors.

Discriminatory, racist fear of minority influencealso led to the creation of Oregon’s non-unanimous jurysystem in 1934. Id. at 1394 (“Adopted in the 1930s,Oregon’s rule permitting nonunanimous verdicts can besimilarly traced to the rise of the Ku Klux Klan andefforts to dilute ‘the influence of racial, ethnic, andreligious minorities on Oregon juries.’”) (quotingOpinion and Order at 16, State v. Williams, No.15–CR–58698 (C. C. Ore., Dec. 15, 2016)).

Oregon’s fear encompassed Black persons, whomOregon classified as “immigrants” and prohibited fromentering the State until 1927. Williams, at 11. In the

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1920s, Oregon had the largest Ku Klux Klan chapterwest of the Mississippi, totaling more than 200,000members.4 In 1934, only seven years after Oregonpermitted Black persons to return, its legislatureadopted a non-unanimous jury system. Id. at 11–12.

Three prominent court-related news stories inOregon papers led to the State’s action. In eachinstance, Oregon newspapers focused on the racialcomposition of juries that prevented guilty verdicts,which fueled the public’s fears. Williams, at 13–14.

First, the “Massie Affair” in Honolulu involved adeadlocked jury in a case alleging the rape of a whitewoman by five non-white men. A May 7, 1932 columnin The Morning Oregonian contended that the “nativeand mixed-blooded people” exhibited a “lack ofresponsibility” by “freeing the assaulters of Mrs.Massie.”

Second, The Morning Oregonian, on November 3,1933, claimed that the influx of immigrants and theirchildren was a cause of widespread jury fixing inBoston: “[M]any people in the world are unfit fordemocratic institutions . . . , for instance, the completelack of a sense of responsibility on the part of therecent mixed murder jury in Honolulu.”

And third, a critical trial occurred within Oregon. Jake Silverman, a Jewish man charged with murder,ultimately received three years in prison formanslaughter after eleven jurors wanted to convict on

4 Oregon Historical Society: The Oregon Encyclopedia,Blacks in Oregon, https://oregonencyclopedia.org/articles/blacks_in_oregon/#.XwsKjEVKiM8.

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second-degree murder, but one wanted to acquit. Williams, at 14–15. The compromise verdict fueledcontinued public outrage. The Morning Oregonian, onNovember 25, 1933, linked the verdict to “the vastimmigration into America from southern and easternEurope.” See also id. at 15–16 (noting that mediacoverage focused on issues of race and jurycomposition). Within weeks of that trial, the Oregonlegislature asked citizens to vote on a constitutionalamendment that would allow convictions if ten out oftwelve jurors voted guilty. Id. (explaining thatarguments supporting passage of amendment includedspecific references to Silverman trial).

“[T]he inescapable conclusion is that the historicalevidence supports a racial undercurrent to 302-33[Oregon’s non-unanimous jury system].” Id. at 16. Accordingly, Williams made a finding of fact “that raceand ethnicity was a motivating factor in the passage of302-33, and that the measure was intended, at least inpart, to dampen the influence of racial, ethnic, andreligious minorities on Oregon juries.” Id.

B. Introduction of Racial Bias into theCriminal Justice System Necessarily“Seriously Diminish[es]” Accuracy.

Under Teague, a “‘watershed rul[e] of criminalprocedure’ implicating the fundamental fairness andaccuracy of the criminal proceeding” will haveretroactive effect. Whorton v. Bockting, 549 U.S. 406,417 (2007) (quoting Saffle v. Parks, 494 U.S. 484, 495(1990)). To qualify as “watershed,” a rule must be“necessary to prevent an impermissibly large risk of aninaccurate conviction.” Id. at 418 (internal quotations

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omitted). The rule must also “constitute a previouslyunrecognized bedrock procedural element that isessential to the fairness of a proceeding.” Id. at 421. Ramos qualifies because the Court rejected a systemthat was designed to, and did, produce inaccurateresults in criminal trials.

As discussed in Petitioner’s brief, even absent aracist intent, a non-unanimous jury system lacks thethorough, careful, and reliable deliberations of aunanimous system. See Pet. Br. at 22–34. Unanimityrequires the entire jury to consider, accept, or rejectminority viewpoints.

Add racial bias to the equation and the risk thatnon-unanimous juries produce inaccurate convictionsbecomes not just “impermissibly large,” butoverwhelmingly so. “[D]iscrimination on the basis ofrace, ‘odious in all aspects, is especially pernicious inthe administration of justice,’” damaging the jurysystem both in “fact” and in “perception.” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017)(quoting Rose v. Mitchell, 443 U.S. 545, 555 (1979)).While “racial prejudice” is the “paradigmatic capriciousand irrational sentencing factor,” Graham v. Collins,506 U.S. 461, 484 (1993) (Thomas, J., concurring),racial prejudice at the verdict stage is equallycapricious, irrational, and thus highly subject toerroneous convictions.

Louisiana and Oregon enacted non-unanimitystatutes to put more non-whites in jail. “[T]he wholepoint of adopting the non-unanimous jury requirement”was to “make a difference in practice” by “silenc[ing]the voices and negat[ing] the votes of black jurors.”

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Ramos, 140 S. Ct. at 1417–1418 (Kavanaugh, J.,concurring). As the data shows, the system workedthe way the adopters intended.

While some may argue that a particular convictionmight not have turned out differently under aunanimity requirement, that type of counterfactualreasoning is particularly inapt here. A non-unanimousverdict is, by definition, inaccurate: “[a] ‘verdict, takenfrom eleven, [is] no verdict’ at all.” Id. at 1395 (quotingJames Bradley Thayer, A Preliminary Treatise OnEvidence At The Common Law 88–89, n.4 (Boston,Little, Brown & Co. 1898)). It is no response to saythat some who voted to acquit might have changedtheir minds—to do so is to disregard the votes thosejurors actually cast, which was the whole point of thenon-unanimous jury system. The Court should notrepeat that error.

C. Non-unanimous Jury Systems HaveProduced Wrongful Convictions,Disproportionately So for MinorityDefendants.

As explained, the creators of the non-unanimousjury system succeeded in accomplishing their racistmotives, but the insidious nature of non-unanimousjuries inevitably makes the total universe of wrongfulconvictions difficult to catalogue. While exonerationsprovide straightforward evidence of diminishedaccuracy, high rates of non-unanimous jury convictionsand high incarceration rates for people of color serve asuseful proxies.

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1. Exonerations

Exonerations of Black defendants convicted by non-unanimous juries provide quintessential evidence ofthe system’s seriously diminished accuracy. Accordingto a 2015 report by the National Registry ofExonerations (“NRE”), Louisiana is second in thenation in the rate of wrongful convictions.5

And, according to the NRE, Orleans Parish,Louisiana (New Orleans) has the highest per capitarate of proven wrongful convictions of any majormetropolitan county. Id. at 15. In fact, New Orleans’sper capita rate of proven wrongful convictions is almostten times the national average and more than 40%higher than the city with the second highest rate(Boston). Brief of Amicus Curiae from InnocenceProject New Orleans and the Innocence Project, Ramosv. Louisiana, 2019 WL 2563177, at *6 (U.S. 2019) (No.18-5924) (“Innocence Project Brief”). This rate exists inNew Orleans despite the fact that thousands of itemsof evidence in closed or cold cases that could have beenDNA tested to prove innocence were lost during theflooding following Hurricane Katrina in 2005. SeeChristopher Drew, Rust in the Wheels of Justice, N.Y.TIMES (Nov. 21, 2006).

Of the 32 exonerations in Louisiana where the jurywas permitted to convict by a non-unanimous vote, atleast 15—almost half—involved non-unanimous jury

5 See Nat’l Registry of Exonerations, The First 1600 ExonerationsReport 14 (2015), http://www.law.umich.edu/special/exoneration/Documents/1600_Exonerations.pdf.

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convictions of innocent persons.6 See Innocence ProjectBrief, 2019 WL 2563177, at *8 n.12. All but three hadbeen wrongly sentenced to life in prison without parolebased on a non-unanimous verdict. Twelve of thefifteen were Black.

There is less data in Oregon in part because Oregondid not have an organization dedicated to investigatingwrongful convictions in criminal cases until 2014. Since 1989, there have been 20 exonerations in Oregon,according to the NRE. At least three involved non-unanimous juries.7

While only Louisiana and Oregon used non-unanimous jury systems for convictions, Florida,Alabama, and Delaware used non-unanimous jurysystems for sentencing, including for imposing capital

6 Counsel has located two subsequent exonerations of defendantsconvicted by a non-unanimous jury that have occurred since theInnocence Project Brief: State v. Royal Clark, Jefferson ParishCase No. 02-895; State v. Catina Curley, Orleans Parish Case No.491-907. This represents only the number of cases that can beconfirmed as a result of reported non-unanimous verdicts. Thereare likely several more that cannot be confirmed because completeinformation is unavailable in all of the 32 exonerations. Thenumber of people still in prison wrongly convicted by non-unanimous juries (and who do not have the right to a state-appointed attorney following direct appeal) is likely significantlyhigher than those identified. See Samuel R. Gross & MichaelShaffer, Nat’l Registry of Exonerations, Exonerations in the UnitedStates, 1989-2012, 16 n.26 (2012), http://www.law.umich.edu/special/exoneration/Documents/exonerations_us_1989_2012_full_report.pdf.7 State v. Pamela Reser, No. CR98654B (Yamhill Cty. 1999); Statev. Bradley Holbrook (Yamhill Cty. 2002); State v. Joshua Horner(Deschutes Cty. 2017).

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punishment.8 As with convictions, the use of the non-unanimous jury system in sentencing is fatally flawedand inaccurate.9 Since 1972, there have been 32exonerations of persons sentenced to death in thosethree states; in 30 of these cases, the jury vote wasdeterminable. Id. In 28 of those 30 exonerations, atleast one juror voted against a death sentence—a rateof 93.3%. Id.

Allowing non-unanimity played a role indiminishing the accuracy of the outcomes in thosecases. Other innocent people certainly remainincarcerated because of non-unanimous jury verdicts,but their convictions remain intact because of thedifficulty in overturning a conviction based on aninnocence claim. See Brandon Garrett, Convicting theInnocent: Where Criminal Prosecutions Go Wrong(Harvard Univ. Press 2012) (finding that, of 250 of thefirst DNA exonerees, 90% of those who challenged theirconvictions prior to DNA testing failed).

Finally, it is inevitable that many of the non-unanimous convictions led to convictions of moreserious crimes and longer sentences than would havebeen the case had unanimity been required, which

8 Those states altered that practice after this Court’s decisions inRing v. Arizona, 536 U.S. 584 (2002), and Hurst v. Florida, 136S. Ct. 616, 619 (2016). Cf. State v. Poole, 292 So. 3d 694 (Fla.2020). 9 See Death Penalty Information Center, DPIC Analysis: Exoneration Data Suggests Non-Unanimous Death-SentencingStatutes Heighten Risk of Wrongful Convictions, (Mar. 13, 2020),https://deathpenaltyinfo.org/news/dpic-analysis-exoneration-data-suggests-non-unanimous-death-sentencing-statutes-heighten-risk-of-wrongful-convictions.

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often leads to compromise and agreement on lesserincluded offenses. Because a non-unanimous verdict is“no verdict at all,” those “verdicts” are “wrongfulconvictions” for purposes of this analysis, and doubtlesshave occurred in the racially disproportionate mannerthe respective states intended.

2. High Rate of Non-Unanimous JuryConvictions

As intended, non-unanimous jury verdicts led tohigher rates of convictions, in particular for non-whitedefendants. See State ex rel. Smith v. Sawyer, 501 P.2d792, 793 (Ore. 1972). In 2009, the Oregon PublicDefense Services Commission prepared a report on therates of non-unanimous convictions to address the“widely differing opinions on the frequency of non-unanimous verdicts.”10 That commission concludedthat of 662 sample cases, more than 40% resulted innon-unanimous verdicts. Louisiana has similar rates,with one report showing “[r]oughly 40 percent of thepeople who are convicted after jury trials in Louisianaare convicted by nonunanimous juries.”11

Non-unanimous jury convictions have a greaterimpact on people of color. In Louisiana, Blacks weremore likely to be convicted by a non-unanimous jurythan whites: available data shows that 43% of Black

10 The Oregon Public Defense Services Commission, On theFrequency of Non-Unanimous Felony Verdicts In Oregon (May 21,2009), http://www.lb7.uscourts.gov/documents/11-20911.pdf. 11 Dan Swenson, Understanding Louisiana’s Nonunanimous JuryLaw Findings: Interactive, Animated Slideshow, The Advocate(Apr. 1, 2018), https://www.nola.com/article_6f93e1a3-8c1d-51b0-ae77-e3980ec8decb.html.

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defendants were convicted by a non-unanimous jury,compared to 33% of white defendants.12

In Oregon there is little data reflecting the rates ofnon-unanimous jury verdicts against racial and ethnicminorities. But there is compelling anecdotal evidencethat comports with the data from Louisiana. Forexample, in Williams, a non-unanimous jury found aBlack defendant guilty of one count of sodomy and thejudge sentenced him to 100 months of imprisonment,but at sentencing, the lone Black juror raised her handand said that she voted to acquit and that theconviction was unfair. Williams, at 1–2. She laterexplained that the other jurors ignored her opinions, aswell as those of the other dissenting juror, because theywere verdict-driven and refused to consider theevidence. Brief of Amicus Curiae from Prominent andFormer State Executive and Judicial Officers, LawProfessors, and the OCDLA, Ramos v. Louisiana, 2019WL 2563177, at *24 (U.S. 2019) (No. 18-5924).

The greater number of non-unanimous juryconvictions against people of color likely stems from theability to suppress minority juror votes. A 2018analysis of non-unanimous Louisiana convictionsshowed that “black jurors found themselves casting‘empty votes’– that is, ‘not guilty’ votes overridden bythe supermajority vote of the other jurors – with 164%of the frequency we would expect if jurors voted ‘guilty’

12 Jeff Adelson, et al., How an Abnormal Louisiana Law Deprives,Discriminates and Drives Incarceration: Tilting the Scales, TheAdvocate (Apr. 1, 2018), https://www.theadvocate.com/baton_rouge/news/courts/article_16fd0ece-32b1-11e8-8770-33eca2a325de.html.

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and ‘not guilty’ in a racially balanced manner.” Frampton, supra, at 1637.

These racially disparate results do not arise solelyfrom outright racist sentiments (though some do), butalso arise from implicit bias. Empirical evidence showsthat implicit bias—the unintentional stereotyping thataffects everyone’s decision-making—has an impact onfalse memories and judgments about ambiguousevidence. See Jerry Kang, et al., Implicit Bias in theCourtroom, 59 UCLA L. Rev. 1124, 1126 (2012)(“[J]urors of one race treat defendants of another raceworse with respect to verdict and sentencing.”); JustinD. Levinson, Forgotten Racial Equality: Implicit Bias,Decisionmaking, and Misremembering, 57 Duke L.J.345, 404 (2007); Justin D. Levinson & Danielle Young,Different Shades of Bias: Skin Tone, Implicit RacialBias, and Judgments of Ambiguous Evidence, 112 W.Va. L. Rev. 307, 339 (2010) (participants foundambiguous evidence significantly more indicative ofguilt when perpetrator had dark skin). Empiricalevidence also shows that requiring unanimity amongjurors lessens the impact of racial bias. Smith &Sarma, supra, at 379, 395 (juries with no Black malemembers imposed death sentences in more than 71% ofcases compared to 42.9% where at least one blackperson served). Allowing non-unanimous jury verdictsto stand thus increases the risk that convictions areinfected by implicit racial bias, which isconstitutionally unacceptable. See Pena-Rodriguez, 137S. Ct. at 868 (“[R]acial bias, a familiar and recurringevil that, if left unaddressed, would risk systemicinjury to the administration of justice.”).

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3. High Rate of Incarceration for RacialMinorities

The high rate of incarceration for racial minoritiesin Louisiana and Oregon shows that the system isworking as intended. Louisiana now “leads the nationand the entire world in the incarceration of AfricanAmericans per capita.” Glenn Davis, Jr., WrongfullyConvicted by Non-unanimous Jury, I Spent 15 Years inPrison for Crime I Didn’t Commit, The Advocate (Oct.1, 2018). “Over 70% of all prisoners in Louisiana areAfrican-American, despite the fact that AfricanAmericans constitute 32% of the State’s population.”

Smith & Sarma, supra at 361, 365. By contrast,Mississippi—a similar, nearby state without non-unanimous juries—has the fortieth highestincarceration rate of Black people in the nation.13 InOregon, Blacks are incarcerated more often thanwhites at a rate of 5.6 to 1. Aliza B. Kaplan & AmySaack, Overturning Apodaca v. Oregon Should BeEasy: Nonunanimous Jury Verdicts in Criminal CasesUndermine the Credibility of Our Justice System, 95Or. L. Rev. 1, 42 (2016). “[I]n 2014, one in twenty-oneof all African American adult males were in prison.” Id.

These data points likely reveal just the tip of theiceberg for wrongful convictions obtained through non-unanimous jury convictions.

13 Ashley Nellis, The Color of Justice: Racial and Ethnic Disparityin State Prison, The Sentencing Project (June 14, 2016),http://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/.

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II. New Rules Barring Racial DiscriminationAre Substantive Under Teague.

The harm of Louisiana’s and Oregon’s raciallydiscriminatory jury systems reaches beyond the threatof wrongful convictions. Aimed at producing inaccurateresults, their systems’ purposes of reinforcing racialinequities and subordinating racial minorities mattertoo.

Ramos should be retroactive because it is asubstantive rule under Teague and its progeny. WhileRamos’s rule does have procedural elements, a rule isnot transmogrified from substantive to proceduralmerely because it is both procedural and substantive;rather, procedural rules regulate “only the manner ofdetermining the defendant’s culpability.” Schriro v.Summerlin, 542 U.S. 348, 353 (2004) (emphasis added). Accordingly, where, as here, a rule has both proceduraland substantive features, the Court must treat itanalytically as substantive and apply it retroactively.

Substantive rules are those “guarantees accorded bythe Constitution, regardless of the proceduresfollowed.” Penry v. Lynaugh, 492 U.S. 303, 329 (1989). Those guarantees are “categorical” and “place certaincriminal laws and punishments altogether beyond theState’s power to impose.” Montgomery, 136 S. Ct. at729.

Protection from race discrimination is precisely sucha guarantee. The State is categorically barred fromestablishing a caste system, whether explicitly orimplicitly. See Hunter v. Underwood, 471 U.S. 222,227–228 (1985) (finding that 1902 Alabama facially

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neutral constitutional provision violated EqualProtection Clause due to racist intent and results). This bar places the infliction of a certain kind of harm“altogether beyond the State’s power to impose.” Montgomery, 136 S. Ct. at 729. Thus, as Ramosrecognized, it is “categorically” beyond the State’spower to use the jury system to “establish thesupremacy of the white race.” 140 S. Ct. at 1394(quoting Louisiana Convention Record). Because thenon-unanimous jury system was the product of racistintent and produced racially disparate outcomes, bothit and the harm it inflicted was “barred by theConstitution” and was “by definition, unlawful.” Montgomery, 136 S. Ct. at 729–730.

This harm cannot be equated to or bound up withthe “ordinary” harms in the risk of wrongfulconviction—even if the non-unanimous jury rule had noeffect on the rate of wrongful convictions, thediscriminatory harms would still be present. Accordingly, rules barring discriminatory harm arequalitatively different from procedural rules.

Preserving convictions by non-unanimous juries notonly perverts our system of justice but, like all systemsof discrimination, inflicts “serious social and personalharms” upon racial minorities. Roberts v. UnitedStates Jaycees, 468 U.S. 609, 625 (1984); see alsoHeckler v. Mathews, 465 U.S. 728, 739–740 (1984)(“[D]iscrimination itself, by perpetuating ‘archaic andstereotypic notions’ or by stigmatizing members of thedisfavored group as ‘innately inferior’ and therefore asless worthy participants in the political community cancause serious non-economic injuries . . . .” (quoting

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Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725(1982)).

Discriminatory harm is especially concerning whenmanifested in the criminal justice process. See, e.g.,Rose v. Mitchell, 443 U.S. 545, 555 (1979)(“Discrimination on the basis of race, odious in allaspects, is especially pernicious in the administrationof justice.”).

Moreover, “[t]he injury is not limited to thedefendant.” Ballard v. United States, 329 U.S. 187, 195(1946). Just as race-based exclusion of petit jurorsviolates the juror’s rights under the Equal ProtectionClause, Powers v. Ohio, 499 U.S. 400, 409 (1991), so toodid the non-unanimous jury rule violate the rights ofminority jurors whose voices Louisiana and Oregonpurposefully silenced because of their race. Byrendering irrelevant the votes of non-white jurors,Louisiana and Oregon imposed “a brand upon them”and the defendants, functioning as “an assertion oftheir inferiority, and a stimulant to that race prejudicewhich is an impediment to securing to individuals ofthe race that equal justice which the law aims to secureto all others.” Strauder, 100 U.S. at 308.

The community is also harmed “by the State’sparticipation in the perpetuation of invidious groupstereotypes and the inevitable loss of confidence in ourjudicial system that state-sanctioned discrimination inthe courtroom engenders.” J.E.B. v. Alabama ex rel.T.B., 511 U.S. 127, 140 (1994); see also Ballard, 329U.S. at 195 (noting harm to “the law as an institution”and “to the community at large”). Allowing convictionsobtained under Jim Crow laws to stand “destroys the

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appearance of justice and thereby casts doubt on theintegrity of the judicial process.” Rose, 443 U.S. at555–557. Ramos made clear that non-unanimousconvictions must not stand in the future. The Courttoday should announce that past convictions under thisscheme, regardless of finality, similarly must notstand.

Because Ramos barred the use of a discriminatoryscheme, it announced a substantive rule renderingconvictions obtained under that scheme “illegal andvoid.” Ex parte Siebold, 100 U.S. 371, 376 (1880). TheCourt must apply this substantive rule retroactively.

III. Teague Does Not Preclude Retroactivity ofNew Rules Barring UnconstitutionalDiscriminatory Harm.

A. The Goals of the Ramos Rule Eclipse theConcerns with Retroactivity Espousedin Teague.

Regardless of how the Court categorizes the Ramosrule, it does not implicate the concerns that underlieTeague’s presumption against retroactivity. Thatpresumption was based on the Court’s concern withfinality and comity. Teague, 489 U.S. at 308. Likewise, Teague’s exceptions embody concern for “theliberty interests of those imprisoned pursuant to ruleslater deemed unconstitutional.” Montgomery, 136S. Ct. at 736. These same aims support granting rulesagainst discrimination retroactive effect regardless ofwhether they fit within Teague’s definition of“procedural” or “substantive.” Instead, because here,as on direct review, “the interests and finality and

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comity that caused [the Court] to implement theTeague standards of retroactivity are not at issue,” orat minimal issue, the “only demands with which [theCourt] need . . . concern [itself] are those of theConstitution.” Johnson v. Texas, 509 U.S. 350, 378(1993).

The interest in finality that militated againstretroactivity in Teague, 489 U.S. at 307, is minimalhere because “[t]here is little societal interest inpermitting the criminal process to rest at a point whereit ought properly never to repose.” Mackey v. UnitedStates, 401 U.S. 667, 693 (1971) (Harlan, J., concurringin part and dissenting in part). Though Justice Harlanwas referring to “substantive” rules, the same principleapplies in the context of discrimination: the criminalprocess should not “rest” at the conclusion of a processstarted with discriminatory intent and that produceddiscriminatory effects.

The importance of finality derives from the interestin preserving the deterrent effect of criminal law,Teague, 489 U.S. at 308–309, the risk of a less reliableresult upon retrial, see McCleskey v. Zant, 499 U.S.467, 491 (1991), and the “costs imposed” on states ofresulting collateral post-conviction review. Teague, 489U.S. at 310 (quoting Solem v. Stumes, 465 U.S. 638,654 (1984)). These interests are undermined, notadvanced, by denying retroactive effect to rules barringdiscrimination.

First, deterrence cannot be achieved through non-retroactivity because discrimination undermines thelegitimacy of the criminal justice system. E.g., Rose,443 U.S. at 555–557; J.E.B., 511 U.S. at 139–140.

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Deterrence works by sending a message that those whoviolate the law—and only those who violate thelaw—will be punished. Meting out and maintainingarbitrary, race-based convictions sends the oppositemessage.

Second, reliability of the verdict is advanced byretroactivity because discrimination in the criminaljustice system necessarily undermines the reliability ofthe original result. The non-unanimous jury system,established to inject race-based inaccuracy into thecriminal justice process, spawns unreliability.

Additionally, the Court should recognize thatpreserving convictions obtained under laws designedwith an intent that is constitutionally repugnant cannever correspond with the fundamental valueundergirding the interest in finality. At its essence,the interest in finality is an interest in maintaining theintegrity of the criminal justice system. See Teague,489 U.S. at 308–310. Although they often align, theseinterests are not always in lockstep. If an underlyingproceeding denies a defendant his fair day in courtbecause of a racially discriminatory law, the decision toleave the defendant’s conviction untouched stands onlyto diminish, not enhance, the public’s faith in theintegrity of the system.

Nor should convictions obtained pursuant todiscriminatory laws be entitled to comity. “Comity”entails the “proper respect for state functions.” Preiserv. Rodriguez, 411 U.S. 475, 491 (1973) (quotingYounger v. Harris, 401 U.S. 37, 44 (1971)). It is alsoanimated by the desire to “avoid retrials, some ofwhich, held so late in the day, may lead to freedom for

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some petitioners whose initial convictions were in factunaffected by the errors that took place at their initialtrials.” O’Neal v. McAninch, 513 U.S. 432, 443 (1995). Neither of these aspects of comity are advanced bycontinued respect for convictions obtained under aracially discriminatory rule. “State functions” are notentitled to respect when they are animated by racistaims and produce racist results. Nor is the concernover inaccurate results on re-trial worth considerationwhere the initial trials were tainted by afundamentally inaccurate system and racial prejudice.

Finally, Ramos implicates the liberty interests ofthe incarcerated—the same concern underlying theTeague exceptions—and here, those liberty interestsoutweigh any costs imposed on the states. The“interests of those imprisoned pursuant to rules laterdeemed unconstitutional” are especially pronounced incases such as this one where those rules inflicted theindignities of discrimination upon the defendant. Montgomery, 136 S. Ct. at 736. In those instances, theharm is compounded because imprisonment is a daily“assertion of [the individual’s] inferiority.” Strauder,100 U.S. at 308. Here, those interests outweigh thoseof the states because, as Justice Gorsuch observedduring oral argument in Ramos, the states’ relianceinterests should not compel the Court to “foreverensconce an incorrect view of the United StatesConstitution in perpetuity, for all states and all people,denying them the right that we believe was originallygiven to them.”14

14 Ramos Oral Arg. Trans. 58:6-10, available athttps://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-5924_4gcj.pdf.

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It is unthinkable “to perpetuate something we allknow to be wrong only because we fear the consequenceof being right.” 140 S. Ct. at 1408. In these cases, theinterests in finality and comity “must yield to theimperative of correcting a fundamentally unjustincarceration.” Engle v. Isaac, 456 U.S. 107, 135(1982).

B. Batson v. Kentucky Is Distinguishable.

The Court’s rejection of retroactivity for Batson v.Kentucky, 476 U.S. 79 (1986), which also concernedrace discrimination in the context of juries, is not atodds with the above analysis. Ramos differs fromBatson in several ways.

First, Ramos’s retroactivity must be decided underTeague’s framework whereas Batson’s retroactivity wasdecided before Teague in Allen v. Hardy, 478 U.S. 255(1986), under the framework that Teague overturned. Teague, 489 U.S. at 295. Although Teague held thatAllen prevented the petitioner from arguing Batson’sretroactivity, that aspect of Teague reflects more thedoctrine of stare decisis than vitality of the reasoning inAllen.

Second, Batson is distinguishable because the non-unanimous jury rule vitiates the accuracy of criminaltrial outcomes where Batson merely had “somebearing” on it. Allen, 478 U.S. at 259. Allen found thatBatson was not retroactive specifically because theBatson rule only somewhat improved the accuracy ofcriminal trials. Id. (“By serving a criminal defendant’sinterest in neutral jury selection procedures, the rule in

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Batson may have some bearing on the truthfindingfunction of a criminal trial.”) (emphasis added).

In other words, Batson, which simply adjusted theevidentiary standard to establish discrimination inperemptory strikes, did not create a sea change thatwould result in radically more reliable case outcomes. Ramos, conversely, involves a new rule to enhanceaccuracy and improve fact-finding in criminal trials byeliminating laws based in racism. Before Ramos,Louisiana’s and Oregon’s rules allowing criminalconvictions by non-unanimous juries were designedexplicitly to thwart both the accuracy and truth-findingfunctions of trials “to establish the supremacy of thewhite race”: “courts in both Louisiana and Oregonhave frankly acknowledged that race was a motivatingfactor in the adoption of their States’ respectivenonunanimity rules.” Ramos, 140 S. Ct. at 1394. Because procedural rules can be applied retroactivelyonly where they “implicat[e] the fundamental fairnessand accuracy of the criminal proceeding,” Montgomery,136 S. Ct. at 728, this difference alone is dispositive.

Third, Batson concerned individual choices byprosecutors in specific cases, not a discriminatorystatutory framework fundamental to the jury system. Accordingly, giving Batson retroactive effect wouldhave implicated Teague’s concern with finality. In eachpetition for post-conviction relief under a retroactiveBatson, a court would first need to determine whetherthe facts supporting a Batson violation existed. Giventhat prior to Batson prosecutors were generally notquestioned on individual juror strikes, courtsconsidering habeas petitions would have had to guess

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at a prosecutor’s thought processes from years prior. But Ramos, if held retroactive, would require no suchadditional fact-finding because all non-unanimous juryconvictions arrived under the old rule areconstitutionally suspect. See id. at 1395 (emphasizingintrinsic value of unanimity).

Likewise, retroactivity for Batson would haveimposed significant costs on states, as the state’sjudiciary and prosecutors would have had to handle notonly the habeas petitions and resulting new trials, butalso new fact-finding as to whether discriminationoccurred in the first instance. By contrast,retroactivity for Ramos’s rule would not impose theseadditional fact-finding burdens—and the ordinaryburdens it would impose would affect only two states.

Finally, though announcing a “new rule,” Batson didnot create a “categorical constitutional guarantee[],”Montgomery, 136 S. Ct. at 729, but rather adjusted the“evidentiary showing necessary to make out a primafacie case” of the existing right against racediscrimination in jury selection. Teague, 489 U.S. at295. By contrast, Ramos established a flat right to aunanimous jury verdict. This is precisely the sort of“sweeping and fundamental” rule Teague contemplatedto be retroactive. Beard v. Banks, 542 U.S. 406, 418(2004).

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IV. As in Other Contexts, Victims of RacialDiscrimination Must Be Restored to “thePosition They Would Have Occupied” butfor the Discrimination.

Because the non-unanimous jury system wasdesigned with discriminatory intent and haddiscriminatory effects, the Court should look forguidance to its Equal Protection Clause jurisprudence. These principles counsel that those who have beendeprived of their freedoms and subjected to the stigmaof discriminatory systems must be provided theopportunity to return to “the position they would haveoccupied” but for the law’s invidious effects. UnitedStates v. Virginia, 518 U.S. 515, 547 (1996) (quotingMilliken, 433 U.S. at 280). In cases where thoseaffected by discriminatory laws are confined by finalconvictions, retroactivity is the only means to wipeclean the criminal justice system of the stains ofprejudice.

Teague explained that “which cases are closed, forwhich retroactivity-related purposes, and under whatcircumstances” may differ depending on “certainspecial concerns” in various contexts. ReynoldsvilleCasket Co. v. Hyde, 514 U.S. 749, 758 (1995). One such“special concern” not elucidated by the Court in Teague,but informed by the Court’s precedents, is the need toprovide a remedy for the ongoing harms ofdiscriminatory laws. When declaring a lawunconstitutional leaves in place a wrong caused by thatlaw’s prior effect, the natural conclusion is “that someremedy must be provided.” See id. at 760 (Scalia, J.,concurring). In such cases, it “makes sense to speak of”

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the Court’s “remedial discretion” in relation toretroactivity. Id. Whether “the ordinary application ofa new rule of law ‘backwards’ . . . involve[s] a furthermatter of remedies” will “depend . . . upon the kind ofcase, matter, and circumstances involved.” Id. at744–755.

The instant case, which involves the staying powerof laws with a discriminatory purpose, is precisely thesituation for which this Court’s “remedial discretion” ismost appropriate. While this Court’s decision inRamos rightfully resolved the issue of non-unanimousjuries moving forward, it must also retroactivelyresolve the decades of racially disparate effects causedby laws this Court recognized were designed with aninvidious purpose.

To resolve these lasting effects, the Court shouldapply Ramos retroactively. The principles of equalprotection command special consideration for“eliminat[ing] [] the discriminatory effects of the past.” Virginia, 518 U.S. at 547 (quoting Louisiana v. UnitedStates, 380 U.S. 145, 154 (1965)). To remedy theseeffects, the Court must “shape[]” an appropriateremedy that “place[s] persons unconstitutionallydenied an opportunity or advantage in ‘the positionthey would have occupied’” but for the discrimination. Virginia, 518 U.S. at 547 (quoting Milliken, 433 U.S. at280).

Louisiana v. United States, 380 U.S. 145 (1965), ison point. Louisiana invalidated the voter registration“interpretation test” designed “to keep white citizens incontrol” by making it harder for Black residents toregister to vote. Id. at 149. The Court found it

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necessary to examine the lasting effects caused by thediscriminatory intent. Rather than merely barring thediscriminatory system and leaving Black voterswithout a restorative remedy, the Court ruled that alleligible Black voters impacted by the interpretationtest would be registered to vote before any newregistration requirements were put in place. Id. at 155. This remedy fully comported with the Court’s “duty . . .so far as possible [to] eliminate the discriminatoryeffects of the past as well as bar like discrimination inthe future.” Id. at 154 (emphasis added).

Though this case concerns criminal justice, itimplicates the same constitutional principle of non-discrimination. Just like the test in Louisiana, thenon-unanimous jury law was instituted to “establishthe supremacy of the white race.” Ramos, 140 S. Ct. at1394. In fact, the discriminatory procedure inLouisiana had its origins in the same 1898 LouisianaConstitution responsible for Louisiana’s non-unanimous jury system. See 380 U.S. at 147–148.

In Ramos, this Court examined the same“uncomfortable past” it examined in Louisiana andarrived at the right decision. Ramos, 140 S. Ct. at 1401n.44. As in Louisiana, striking down the offendingstatute will not root out past discrimination. Now, asin Louisiana, the Court must look to the uncomfortablepresent. It must recognize that in cases likePetitioner’s, retroactive application is necessary tofulfill the Court’s “duty” to “eliminate thediscriminatory effects of the past” as they persist in thepresent. Louisiana, 380 U.S. at 154.

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Louisiana is no outlier. In the same spirit, lowercourts have corrected for histories of discrimination bygiving newly recognized constitutional rightsretroactive effect. For example, Obergefell v. Hodges,135 S. Ct. 2584 (2015), which held that bans on same-sex marriage violated the Equal Protection Clause, id.at 2602, has been repeatedly held to applyretroactively. See, e.g., Hard v. Attorney Gen., 648 Fed.App’x 853, 856 (11th Cir. 2016); Ranolls v. Dewling,223 F. Supp. 3d 613, 622 (E.D. Tex. 2016); In re State,489 S.W.3d 454, 457 (Tex. 2016) (implicitly applyingObergefell retroactively). Similarly, courts haveapplied United States v. Windsor, 570 U.S. 744 (2013),retroactively. See, e.g., Schuett v. FedEx Corp., 119F. Supp. 3d 1155, 1165 (N.D. Cal. 2016).

Equal protection demands that the effects of raciallydiscriminatory laws be “eliminated root and branch.” Green v. Cty. Sch. Bd. of New Kent Cty., 391 U.S. 430,437–438 (1968). That principle is a “special concern” ofthe Court’s Equal Protection Clause jurisprudence, cf.Teague, 489 U.S. at 310, and it should guide the Courtto exercise its “remedial discretion,” Hyde, 514 U.S. at760 (Scalia, J., concurring), in applying Ramosretroactively.

CONCLUSION

For all of the above reasons, amici urge that theCourt give retroactive effect to the rule announced inRamos v. Louisiana.

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Respectfully submitted,

MATTHEW O. GATEWOOD Counsel of RecordADAM C. POLLET ALEXA R. SHOCKLEY EVERSHEDS SUTHERLAND (US) LLP700 Sixth Street, NW, Suite 700Washington, DC 20001-3980(202) 383-0100 mattgatewood@eversheds-sutherland.us

MICHAEL BOLDT EVERSHEDS SUTHERLAND (US) LLPOne American Center 600 Congress Avenue, Suite 2000Austin, TX 78701(512) 721-2700

KRISTEN CLARKEJON M. GREENBAUMARTHUR AGONOAH BARONLAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW1500 K St. NW, Suite 900Washington, DC 20005(202) 662-8600

JOHN H. FLEMINGMICHELLE T. MCINTYRE EVERSHEDS SUTHERLAND (US) LLP999 Peachtree Street, NESuite 2300Atlanta, GA 30309-3996(404) 853-8000

ALEXANDRA M. LOUDERBACK EVERSHEDS SUTHERLAND (US) LLP500 Capitol Mall #1750Sacramento, CA 95814(916) 241-0500

Counsel for Amici Curiae