The Last Vestige of ‘Jim Crow’ Justice

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Sign in Lancaster, Ohio, 1938. Photo by Image Editor via Flickr

Only two U.S. states still allow juries to convict defendants in non-capital cases without a unanimous decision—but Louisiana reformers are hoping to drop that number to one.

Legal reform advocates in that state have joined the local bar association in pushing legislators to require unanimous jury verdicts for most felony convictions.  A victory in their campaign will leave Oregon as the only holdout allowing non-unanimous verdicts in felony cases, except those in which the convicted person could face the death penalty.

Even though the outcome remains uncertain, the debate over non-unanimous juries in Louisiana has thrown new light on long-ignored issues relating to race and criminal justice.

The reformers, including the Louisiana branches of the American Civil Liberties Union and the Innocence Project,  argue that state lawmakers must act because the state’s courts have refused to consider changing a practice that was instituted in 1898, when the largely white legislature voted to amend the state constitution to allow 9-to-3 jury votes for felony convictions.

In the 1970s, the allowed majority was changed to 10.

Today’s critics of that constitutional amendment, including Angela Bell, a Southern University Law Center professor whose research on non-unanimous juries was published last year in the Mercer Law Review, say those white legislators mainly were aiming to re-subjugate formerly enslaved blacks., and to supply assorted white-run industries with free labor from a prison population that long has been overwhelmingly black.

“Our courts simply will not talk about it, and I have a theory as to why they won’t,” Bell, a leader of the campaign to end the practice, told The Crime Report.

“There’s a fear that if the courts went on record to say they’ve been denying people their … rights, they will create a whole class of people who will then want a remedy. They will want to have their convictions overturned … You’d open the floodgates.”

Few Louisianans, however, are aware of either the issue or the campaign, supporters of the effort contend. That’s why Bell, leaders of the state’s ACLU, the Innocence Project, The Juror Project, and other have been traipsing the state conducting public forums on the topic.

The reformers’ forums, published news op-eds and other campaign efforts come as the bi-partisan Louisiana Justice Reinvestment Task Force—Louisiana is among 34 states with similar bi-partisan initiatives—last month delivered a first draft of proposed changes aimed at reducing the state’s prison population and saving taxpayer dollars now spent on prisons.

Revamping how juries vote is critical to any meaningful criminal justice reform, these advocates say.  That would probably require a state-wide referendum on changing the constitution, but advocates believe more work on justice reinvestment is needed before such a measure could be included on a state ballot.

Reform advocates note that the jury issue is more than a mere matter of dollars and cents.

“This is such a gross violation of Fifth Amendment rights,” said Marjorie Esman, executive director of Louisiana’s ACLU. “If you’re supposed to be guilty beyond a reasonable doubt, the idea that you can be convicted when all the jurors don’t agree is preposterous.

“It violates the principles of what a free society is supposed to be.”

Ed Tarpley, a lawyer who previously was district attorney in Alexandria, La., and is part of the reform campaign, added that the reform effort is part of a movement to bring the state back in line with long-established legal traditions.

Sir William Blackstone called the jury a sacred bulwark of liberty,” he told The Crime Report. “This was such a precious thing. Unanimity is the core of it … It’s the unanimity of the jury that serves the rights of mankind.”

That Louisiana and Oregon are outliers on that front owes to racial and religious bias, author Thomas Aiello wrote in “Jim Crow’s Last Stand: Nonunanimous Criminal Jury Verdicts in Louisiana,” published in 2015.

In Louisiana, blacks were targets of non-unanimous jury proponents. In Oregon—where felony defendants can be convicted by a vote of 11-to-1—Jews were the targets, contends Aiello, a history and African American studies professor at Valdosta State University in Georgia.

In Oregon, the Office of Public Defenders has publicly voiced its opposition to non-unanimous juries. But no campaign as widespread as Louisiana’s exists in that state.

Regarding Louisiana, Prof. Bell of Southern University Law School observed, “In every audience we’ve talked to so far—lawyers, judges, the general public—most people have no idea of the racial history around this, and so many from the general public don’t even know that Louisiana even does this.”

After the Civil War, Louisiana was among southern states relying on “convict leasing,” paying state prisons for convicted persons to labor on plantations and for privately owned business.

“These plantation owners thought to themselves, ‘now that we can lease convicts, we need to get the convicts,’” Bell said.  “Things that were minor infractions became major sentences …

“That’s the scandal, systemically. All of this was born from bad intention. If you understand this law, then you understand why Louisiana is the forerunner in mass incarceration.”

William Snowden, a New Orleans public defender who founded The Juror Project, designed to create more diverse juror panels, and has written commentary opposing non-unanimous juries, said the unanimous jury advocates are trying to seize a moment when the powers-that-be in Louisiana are fixed on correcting a system that many conclude is flawed.

He, too, hopes lawmakers will offer the constitutional amendment cementing unanimous juries. Ultimately, voters must approve the change.

Rallying voter support will require raising more knowledge of what’s at stake and how the jury system works.

Katti Gray

“It’s in that jury room that most jurors learn that only 10 votes are needed,” Snowden said. “Their education needs to begin way before that. And part of that education means pointing out that non-unanimous juries are vestiges of Jim Crow.

“It means telling people, ‘This is why you should care. This is why we need your voice, even more, in the deliberation room.’”

Katti Gray is a contributing editor at The Crime Report. She welcomes your comments. Follow her @kattigray on Twitter.

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