NEW ORLEANS (CN) — An overtly racist, 120-year-old Louisiana law with roots in the Jim Crow era that allows split juries of as few as 10 of 12 to convict even in life-sentence cases may be history after the Nov. 6 elections.
Amendment 2, or Unanimous Jury, has overwhelming bipartisan support across Louisiana, including three of the state’s highest-profile district attorneys, and from Americans for Prosperity and the Louisiana Family Forum, the state’s most influential conservative Christian organization.
Louisiana is one of only two states in which juries can convict by a split vote. Oregon is the other, but it requires a unanimous vote in cases in which a life sentence is possible.
Louisiana’s law is explicitly racist. An excerpt, obtained through the New Orleans Advocate newspaper, from the Official Journal of the Proceedings of the Constitutional Convention of the State of Louisiana of 1898, during which the jury rule was adopted states: “Our mission was, in the first place, to establish the supremacy of the white race in this State to the extent to which it could be legally and constitutionally done.”
Critics of the split-jury rule say the intended white supremacist effects of the law are still evident today: Black defendants are more likely than whites to be convicted by split votes from juries. And while just 32 percent of Louisiana’s population is black, 66 percent of state inmates and 74 percent of those serving life sentenced are black. But defendants statewide are disproportionately black while jurors are disproportionately white, the Advocate found.
Roughly 40 percent of people convicted by jury trials in this state are convicted by non-unanimous juries, and of those convictions, 47 percent were convicted by 10-2 jury votes, according to the Advocate.
Furthermore, more than one-third of life without parole convictions statewide were from non-unanimous juries.
Opponents to Amendment 2 do exist, but they are far and few between. Attorney General Jeff Landry, the state’s top law enforcement officer, expressed opposition to the bill late in summer, saying he would prefer to keep things the way they are, but since then Landry has declined to comment on his stance.
A representative from Landry’s office said last week that Landry is not commenting on the bill before the election. Landry declined an interview, but his representative cited a news article from August in which one of Landry’s deputies, Wilbur “Bill” Stiles III, talked about the benefits of needing only a 10-2 jury vote to secure conviction. That process is more efficient and jury selection is easier than if all 12 jurors must agree, Stiles said.
Stiles said Landry is not concerned by the Advocate’s analysis, which indicates 10-2 jury verdicts disproportionately affect black defendants; he said the legal system has safeguards against racial bias from juries.
Conservatives who support the unanimous jury requirement say it is a matter of constitutional oversight and that it aligns with the Republican philosophy of checks on governmental power.
Americans for Prosperity Louisiana, a conservative foundation funded by the ultra-conservative Koch brothers, announced in early October that it was launching a campaign to mobilize voters in support of Amendment 2.
“Louisianans deserve a justice system that values, above all else, the rights of the accused in a jury trial,” AFP Louisiana director John Kay said in a statement.
“Our staff and activists at AFP Louisiana are excited to come together with folks across the ideological spectrum to stand up for what is right” Kay’s statement continued. “There is no cause more important than preventing the government from taking away an innocent person’s life and liberty in a courtroom.”
The statement was released alongside a quote from Thurgood Marshall: “The doubts of a single juror are, in my view, evidence that the government has failed to carry its burden of proving guilt beyond a reasonable doubt.”
The bill has strong support among Democrats and liberals as well.
Gov. John Bel Edwards, a Democrat, has voiced his support, calling Louisiana “an outlier when we shouldn’t be.”
Sister Alison McCrary, statewide director of operations for the Unanimous Jury Coalition said in an interview Monday: “It’s really about fairness and liberty, so that the government doesn’t take away people’s rights.
“Prosecutors in all other states are able to secure verdicts with unanimous juries, no problem,” McCrary said.
McCrary said that, traditionally, allowing split-jury decisions to convict people ensured that the votes of black jurors on the panel wouldn’t count.
“As taxpayers, we should have confidence that the outcome of a trial is going to be fair,” McCrary said.
Will Snowden, Political Action Committee co-chair for the Martinet Legal Society, Greater New Orleans Chapter, a civil rights organization, and a member of the Unanimous Jury Coalition, called the push for unanimous juries a safeguard to prevent innocent people from going to prison.
Snowden, who worked as a public defender for five years, from 2013 until this spring, said that most of the 12-person juries before whom he tried cases resulted in a non-unanimous verdict.
“Federal prosecutors have to prove their case beyond a reasonable doubt,” Snowden said, “but state prosecutors only have to prove their case beyond two reasonable doubts.”
After a 20-year stint as the state with the highest rate of incarceration, Louisiana managed to fall behind Oklahoma this year, falling to number two instead, according to the Pew Charitable Trusts.
Louisiana’s incarceration rate still far exceeds the national average, with 712 per 100,000 residents in jail, compared with 450 per 100,000 residents in the other 49 states during 2016. Louisiana has about 2,000 inmates serving life sentences based on non-unanimous verdicts, according to the Advocate.