BACKGROUND ​

According to Thomas Aiello, Associate Professor of History and African American studies at Valdosta State University in Georgia, and author of Jim Crow’s Last Stand: Non-unanimous Criminal Jury Verdicts in Louisiana.

From 1880 until 1973 the state of Louisiana only required a jury verdict of 9-3 for felony conviction instead of the unanimous 12 votes traditionally required by U.S. juries.

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After the Civil War - and the Reconstruction period that followed, as southern states were required to rebuild their governments to include newly freed Blacks; white southern Democrats - known as “Redeemers” - were working to do the opposite.

After Reconstruction, the Redeemers re-imposed white control over the system by creating practices such as the system known as “convict leasing”.

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The Redeemers realized that the exception clause to the 13th Amendment of the U.S. Constitution explicitly enslaved incarcerated individuals.

All the Redeemers would have to do is to figure out a way to increase the state’s prison population by filling the prison system with newly freed Blacks and they would once again have a huge pool of free labor. Literally, creating a distinction without a difference.

The convict lease system allowed the state to rent out its prisoners to people or companies who needed labor. “The goal of course was to create enough free labor, so that the railroads, plantation owners and other groups would once again have access to free labor.

The only way to make the practice work, was to make sure that you have enough convicts.” Out of that system came Louisiana’s non-unanimous jury rule.

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One of the ways to make sure that the state could get more convictions is to lower the jury requirement. So, in 1880, the state legislature said juries no longer needed to reach a unanimous decision for a felony conviction. The new burden would be 9 to 3 in favor of conviction.

In 1894, Louisiana lawmakers passed a new jury selection law for Orleans Parish that allowed local commissioners leeway in selecting jurors, resulting in fewer black jurors.

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In 1898, Louisiana convention delegates met to a craft new state constitution effectively ridding blacks from voter rolls. They also ratified 9-3 verdicts in serious felony trials.

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1966: the Federal Appeals Court tossed Orleans Parish jury selection method in which clerks avoided picking manual laborers and daily wage earners, finding it systematically kept blacks off jury venires.

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In the 1972 case of Apodaca v. Oregon, 406 U.S. 404 (1972), the United States Supreme Court held that: State juries may convict a defendant by less than unanimity even though federal law required that federal juries must reach criminal verdicts unanimously.

The four-justice plurality opinion of the court, written by Justice White, affirmed the judgment of the Oregon Court of Appeals, and held that there was no constitutional right to a unanimous verdict. Thus, Oregon’s law did not violate due process.

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At the Louisiana Constitutional Convention of 1973, the delegates, fearing that Louisiana’s non-unanimous jury verdict law was vulnerable to being deemed unconstitutional due to its racial origins: Delegates voted to amend the rule to make the requirement 10 to 2. The logic being, the new rule was no longer based on the Redeemers plot but was now based on the Supreme Court’s: Apodaca v. Oregon ruling. Once again, a distinction without a difference.

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The New Law: On November 6, 2018 the citizens of the State of Louisiana voted to approve a measure to amend the constitution to state:

• Jury Trial in Criminal Cases. A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.

• A case for an offense committed prior to January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.

• A case for an offense committed on or after January 1, 2019, in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, all of whom must concur to render a verdict.

• A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict.

• The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable.

 

While the intent of the 2018 law is clearly to address a big part of the racial inequities in the administration of the Louisiana criminal justice system, it offers no justice for current victims of the old system.