When I first learned that Louisiana and Oregon allowed juries to return non-unanimous verdicts of guilty, I was shocked. It seemed inconceivable. After all, what was the point of a jury of twelve good men and true if not to reach agreement? It was simply so ingrained in my head that the alternative, a verdict of 11 and one or ten and two seemed ridiculous. Obviously not.

The Sixth Amendment to the United States Constitution states that a defendant is entitled to an impartial jury. We refer to it as a jury of one’s peers, although that language appears nowhere in the amendment. Nor does it say that the verdict of that impartial jury must be unanimous. But the federal government required jury unanimity. These, however, were states, and states are entitled to make their own rules of criminal procedure unless the Supreme Court holds that the constraints of the federal Constitution applies to them as well.

The Supreme Court held in Ramos v. Louisiana that the Constitution required that a guilty verdict of a jury must be unanimous, and that this applied to the states. There was a dissent by Justice Elena Kagan, not because she thought the rule was bad or states should be allowed to do as they please without constraint, but because the Court’s otherwise sound decision to require unanimous verdicts failed to adequately address the doctrine of stare decisis, The Court had previously held non-unanimous verdicts to be constitutional, and now they weren’t. If the Court can reverse long-standing precedent at will, no precedent is safe from reversal when new justices take the bench. This gives rise to institutional chaos, a lack of consistency that makes it hard to rely on constitutional law that could reverse on a dime.

But the Court reversed its 1972 precedent anyway and held that state court guilty verdicts must be unanimous. What was left undecided was whether that applied to completed convictions. If appeals were exhausted, and habeas was unavailable due to the constraints of the AEDPA, what happened to the guy who was serving life plus cancer based on a non-unanimous verdict?

In Edwards v. Vannoy, the Court answered the question. You’re screwed.

The Court has stated that a new procedural rule will apply retroactively on federal collateral
review only if the new rule constitutes a “watershed” rule of criminal procedure. Teague v. Lane, 489 U. S. 288, 311 (plurality opinion). When the Teague Court first articulated that “watershed” exception, however, the Court stated that it was “unlikely” that such watershed “components of basic due process have yet to emerge.” Id., at 313. And in the 32 years since Teague, the Court has never found that any new procedural rule actually satisfies the purported exception.

The opinion by Justice Kavanaugh called it out.

Continuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts. Moreover, no one can reasonably rely on an exception that is non-existent in practice, so no reliance interests can be affected by forthrightly acknowledging reality. It is time—probably long past time—to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund. It must “be regarded as retaining no vitality.”

Academics can argue over the theory, and no doubt will, but the more serious question is why wouldn’t the Court, having already done the hard work of reversing itself and establishing that the states must require unanimous verdicts, just apply it to every case, past, present and future. The shorthand explanation is summed up in the word “finality,” that every case can’t remain open to dispute in perpetuity, and at some point has to be over.

How many appeal and habeas-exhausted defendants remain imprisoned after a non-unanimous verdict today? There are guesstimates, perhaps 1,700 in Louisiana and in Oregon, Attorney General Ellen Rosenblum said it could affect “hundreds if not thousands of cases.” That the convictions were predicated on non-unanmious verdicts doesn’t mean these defendants were proven innocent, or that the juries wouldn’t have reached unanimous verdicts had they been sent back to deliberations with an Allen charge. Nor were the convictions unconstitutional when rendered, when the jury was thanked and dismissed for doing its job.

Could these defendants be retried? Witnesses are dead or long gone, as cases could go back decades. Evidence destroyed. Then there are the logistics of having to retry hundreds if not thousands of cases on top of the current crop of pending cases. There aren’t enough courtrooms, judges or lawyers to make this happen if every defendant convicted upon a non-unanimous jury were give a retrial, even if a retrial was viable.

Of course, cutting defendants loose after they spent decades in prison already probably wouldn’t be of serious concern, sentence length being little more than judicial voodoo combined with righteous retribution. How many will fit this paradigm, and how many will still be at the early end of imprisonment and get a walk for lack of witnesses, evidence and an empty room? It’s unclear. How many of these defendants were innocent, or at least not as guilty as the government claims, and how many were bad dudes? It’s unclear as well.

No doubt there will be some defendants who can’t be retried but would have been convicted if the jury were held until it reached a unanimous verdict. The only reason its time was cut short was that state law accepted a non-unanimous verdict and the Supreme Court held that was entirely constitutional. Now it’s not.

Given these very practical concerns, should we shed a tear for the unfortunates whose convictions, lawful and constitutional when rendered, are now subconstitutional, but their day in court is done and the Supreme Court just slammed shut the back door? Consider another principle coming into play, that every defendant is presumed innocent unless and until a unanimous jury returns a verdict of guilty.

“A verdict, taken from eleven, [i]s no verdict at all,” this Court proclaimed just last Term. Ramos v. Louisiana. Citing centuries of history, the Court in Ramos termed the Sixth Amendment right to a unanimous jury “vital,” “essential,” “indispensable,” and “fundamental” to the American legal system.

As painful as it might be to acknowledge that there may well be some bad dudes who “deserve” to be imprisoned and, had Ramos been held retroactive, could walk free, that’s the price of the presumption of innocence. If, as the Court held, a unanimous verdict is fundamental, then these are innocent people in prison and that cannot stand.