Volume 60

Why Are Non-Unanimous (Court-Martial) Guilty Verdicts Still Alive After Ramos?

by Dan Maurer

 The Supreme Court’s 2020 landmark decision in Ramos v. Louisiana finally confirmed that the Fourteenth Amendment incorporates the Sixth Amendment’s guarantee of unanimous verdicts in criminal jury trials against States, ending the last vestiges of Jim Crow-era juror racial disenfranchisement remaining in two States’ criminal procedures. It was not a shocking decision, and it was well past due: 400 years of common law practice reflected in the laws of forty-eight States and the Federal Rules of Criminal Procedure already required unanimous guilty verdicts, along with thirteen prior Court decisions validating this fundamental attribute of jury fact-finding. 

Nevertheless, one holdout remains: it is a niche federal jurisdiction that tries cases nationwide and in foreign countries, makes no distinction between misdemeanor and felony offenses, and invests many prosecutorial and some judicial powers in lay officials by virtue of their relative employment seniority and positional authority. Our lone holdout is the military justice system—erected under federal law and managed by both civilian and uniformed elements of the Executive Branch. Ramos did not— indeed, no Supreme Court decision has—determined the constitutionality of this court-martial procedural rule. No matter one’s understanding of military justice’s purpose, this procedural rule stands out. But depending on that understanding, it stands out as either a necessary idiosyncrasy of a necessarily idiosyncratic system or as an unnecessary anachronism of an increasingly civilian due-process-driven system. 

The dominate reason for this single outlier is best understood as a combination of long-entrenched theories. First, that military courts-martial are implicitly excepted from the demands of the Sixth Amendment’s jury requirement because they are explicitly excepted from the grand jury requirement of the Fifth Amendment and, in general, from Article III. Second, that Congressional determinations of what “military necessity” requires, even in its justice system and over questions of due process, should be given strong deference by the courts. 

This Article suggests that Congress can and should amend the Uniform Code of Military Justice (“UCMJ”) to conform how its jury-like “panels” determine guilt of an accused with every other American jurisdiction. Squaring a circle this is not. No drastic reinterpretation of the Court’s Sixth Amendment-as-applied-in-the-military need take place, and the argument that follows assumes that current doctrine regarding the military’s carve-out from the jury requirement remains static. Instead, Ramos provides the Court’s latest validation of this protection’s worth, and it should be read in light of the 2018 decision in Ortiz v. United States, in which the Court articulated a new “civilianized” vision of what military justice’s primary purpose actually is. While departing from its previous descriptions of the character of military law, the Court nonetheless is now consistent with the overall arc of due process evolution required by Congress in the last seventy years of amendments to the UCMJ. 

Congress can now turn to Ramos and Ortiz as principled justifications for a belief that any distinction made between the Sixth Amendment right to an impartial jury (which service members do not have) and the statutory right to an impartial panel (which service members do have) is a distinction without a difference when it comes to unanimity of guilty verdicts. 

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