Scholarship Saturday: Nonunanimous court-martial convictions are no longer constitutionally defensible

The military justice system’s failure to require a unanimous verdict has long exposed it to criticism. Indeed, as this column has highlighted, even the military institution itself has, from time to time, called the practice into question. Seventy-five years ago the War Department published a recommendation that in trials by court-martial, “a unanimous vote should be required for non-military offenses.” Report of the War Department Advisory Committee on Military Justice (December 13, 1946) at 123.

Despite decades of such dissent inside and outside of the military establishment, in 2016 Congress chose to continue allowing military service members to be sent to prison on non-unanimous convictions. Rather than abolishing the practice altogether, Section 5235 of Public Law 114-328 merely raised the quorum required to convict a service member from two-thirds of the panel to three-fourths. That change was a result of a December 2015 recommendation from the Department of Defense which the Department hoped would “enhance fairness” in its court-martial proceedings. Such an effort is certainly welcome. However, it is perhaps lamentable that, even when trying to “enhance fairness,” Congress and the Department of Defense still chose to fall 25% short of treating service members equally to the civilians they are sworn to defend.

Since the half-measures taken by the Department and Congress in 2016, the practice of allowing non-unanimous criminal convictions has only grown less defensible, especially after the Supreme Court’s decision this week in Edwards v. Vannoy, No. 19-5807 (May 17, 2021). Nonunanimous verdicts harm both society and individual accused, and those harms demand political, social, and legal remedies.

Nonunanimous verdicts dilute the voice of racial and ethnic minorities. That harm to society demands a political and social remedy.

Our society’s renewed focus on systemic racial and ethnic inequity, in both conservative and liberal circles, means that the court-martial system can ill-afford to have attention drawn to the fact that allowing for non-unanimous verdicts allows outliers to be disregarded in the deliberation room, diluting divergent voices. The dilution of divergent viewpoints is particularly concerning given the fact that the commissioned officer corps, from which court-martial members are preferentially selected, is already concerningly lacking in racial and ethnic diversity. The concern that allowing non-unanimous verdicts serves to disenfranchise racial and ethnic minorities was perhaps the essential factor that drove the Supreme Court’s decision last year in Ramos v. Louisiana, 590 U.S. __ (2020).

In Ramos, the Court applied the Fourteenth Amendment to strike down nonunanimous convictions for serious offenses in Louisiana and Oregon. Writing for the Court, Justice Gorsuch pointed to the particularly hateful origin of nonunanimous verdicts in the States as justification for overturning decades of precedent.

Louisiana first endorsed nonunanimous verdicts for serious crimes at a constitutional convention in 1898. . . . [T]he avowed purpose of that convention was to ‘establish the supremacy of the white race.’ Just a week before the convention, the U.S. Senate passed a resolution calling for an investigation into whether Louisiana was systematically excluding African-Americans from juries. Seeking to avoid unwanted national attention, and aware that this Court would strike down any policy of overt discrimination against African-American jurors as a violation of the Fourteenth Amendment, the delegates sought to undermine African-American participation on juries in another way. With a careful eye on racial demographics, the convention delegates sculpted a ‘facially race-neutral’ rule permitting 10-to-2 verdicts in order ‘to ensure that African-American juror service would be meaningless.’

Adopted in the 1930s, Oregon’s rule permitting nonunanimous verdicts can similarly be traced to the rise of the Ku Klux Klan and efforts to dilute ‘the influence of racial, ethnic, and religious minorities on Oregon juries.’

Ramos, slip op. at 2.

Certainly, there is no indication that the military’s allowance for nonunanimous verdicts was motivated by similar malintent. However, the dilution of minority community voices in the administration of military discipline is still a grave social and political ill, even if unintentional. It is an ill that is especially concerning given the fact that racial and ethnic minority voices are already demographically underrepresented. Those societal wounds erode trust for military and political leaders.

​Those wounds persist even if there is no path in the courts for marginalized communities to vindicate their interest under the restrictive precedent of Arlington Heights v. Metropolitan Housing, 429 U.S. 252 (1977) (which requires plaintiffs to show both disparate impact and invidious intent to prevail in a claim against the Federal government, as compared to claims against the States, where disparate impact alone is enough.) Given that restrictive precedent, society's harm will likely need to be vindicated via political and social processes rather than the courts. But, whatever the forum, society has an demanding interest in seeing that all of its constituent communities are represented in the disciplining of the armed forces that fight in their name.

Nonunanimous verdicts deprive the accused of a “momentous and consequential” due process right. That individual harm demands a remedy in court.

The Arlington Heights case may mean that marginalized communities will have to resort to political and social processes for relief from having their voices in military deliberation rooms diluted. But, after the Supreme Court’s decision this week in Edwards v. Vannoy, No. 19-5807 (May 17, 2021), the military accused is better situated.

The due process rights of military accused are generally limited to whatever procedural safeguards have been provided by Congress (in the Uniform Code of Military Justice) or the President (in the Manual for Courts-Martial). Neither of those entities have given an accused in the military the right to a unanimous conviction. However, there is an additional, if rarely used, source of due process in the military: a Fifth Amendment right that is recognized in the civilian jurisdiction also applies in the military if it is deemed to be an “extraordinarily weighty” right. Weiss v. United States, 510 U.S. 163, 177 (1994).

​Until this week’s Edwards decision, a military accused who tried to assert a right to a unanimous verdict had no case to lean on to argue that such a right was “extraordinarily weighty.” While Ramos certainly used soaring language to describe the right to a unanimous verdict, it did not expressly quantify the weight of that right. That changed this week. Edwards gives that quantification. Writing for the majority in Edwards, Justice Kavanaugh placed Ramos’ due process right to a unanimous conviction in esteemed company:

The Court’s decisions in Duncan, Crawford, and Batson were momentous and consequential. All three decisions fundamentally reshaped criminal procedure throughout the United States and significantly expanded the constitutional rights of criminal defendants. One involved the jury-trial right, one involved the original meaning of the Sixth Amendment’s Confrontation Clause, and one involved racial discrimination in jury selection. . . . Ramos is likewise momentous and consequential.

Edwards, slip op. at 14.

Given the language of Edwards, it seems likely that military courts will need to give serious consideration to the possibility that the right to a unanimous verdict, as articulated in Ramos, is an “extraordinarily weighty” right that is automatically applicable to the military jurisdiction under Weiss. Further, in light of the heft that Edwards has just afforded to the Ramos decision, defense counsel representing a military accused today would likely be ineffective if they did not assert a Ramos right to have the military judge instruct the panel that they must be unanimous to convict. Likewise, appellate counsel on direct appeal of a conviction would be deficient to not allege that their client suffered a grave deprivation by being made to stand trial before a panel not required to be unanimous.

​The consequences of failing to preserve those errors could be particularly grave to an accused given that the Edwards decision also held that once a conviction is final, meaning that once direct appeal is complete, there is no remedy for a Ramos violation via collateral attack in the federal courts. In explaining that limitation on retroactivity, the Court in Edwards again took pains to place Ramos in weighty company:

[W]e recognize that the Court’s many retroactivity precedents taken together raise a legitimate question: If landmark and historic criminal procedure decisions—including Mapp, Miranda, Duncan, Crawford, Batson, and now Ramos—do not apply retroactively on federal collateral review, how can any additional new rules of criminal procedure apply retroactively on federal collateral review? At this point, some 32 years after Teague, we think the only candid answer is that none can—that is, no new rules of criminal procedure can satisfy the watershed exception.

Edwards, slip op. at 14-15.

The take-away from Ramos as described by Edwards is that the right to a unanimous verdict is, plainly, extraordinarily weighty. It is a “momentous,” “consequential,” “landmark,” and “historic” right on par with our most hallowed criminal law precedents. Every day that passes that the military jurisdiction fails to acknowledge the fundamental right under Ramos to a unanimous verdict is a day of justice delayed.  

Isaac Kennen

Scholarship Editor