Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
The Louisiana vote to end non-unanimous jury verdicts, plus a new law restoring voting rights to people who've been convicted of felony crimes, equals a hobbling attack on Jim Crow.
Many of the district attorneys across Louisiana were against this week’s ballot referendum vote for Amendment 2 because it would require unanimous consent of juries in criminal trials. The fact that prosecutors now only need 10 or 11 jurors out of 12 for convictions is a luxury that attorneys in no other state, other than Oregon, currently have. However, in the lead-up to this week’s vote, the Louisiana District Attorneys Association (LDAA) didn’t try to sway voters one way or another on Amendment 2 because the association doesn’t take public stances on issues without unanimous agreement from its members. Which means that the LDAA holds itself to a higher standard when deciding politics than many of its own members do for jury decisions where people’s actual lives hang in the balance.
Despite how prosecutors felt about it, Louisiana voters passed Amendment 2 overwhelmingly on Tuesday, with all but two of the state’s parishes (Louisiana’s term for county) voting to overturn it. This means that as of January 2019 prosecutors will need the approval of all 12 jurors in the box for a conviction—something they haven’t needed to do since the Reconstruction era. A recent study from Harvard Law School Fellow Thomas Ward Frampton explains the history behind this phenom called the “The Jim Crow Jury” and how it has impaneled racial discrimination in the way juries, courts, and prosecutors operate in Louisiana today.
The roots of Louisiana’s jury arrangements reach back to 1898, when Louisiana lawmakers installed the non-unanimous jury provision during its constitutional convention that year. It was a convening called with the explicit mission of finding ways to disenfranchise African Americans by any means necessary. It ensured that, while a few African Americans could make their way onto a jury due to federal civil rights protections (Civil Rights Act of 1875), those black jurors’ votes could be rendered nil when outnumbered by white jurors—a tool that would come in handy when white defendants were on the stand.
Early civil rights activists denounced the new non-unanimous jury law as a “Jim Crow Jury” system, designed to restore white supremacy in the state after Reconstruction was sabotaged. The system ensured that no black jurors could obstruct the increasing criminalization of African Americans, which was a budding enterprise at the turn of the 20th century. Other states entertained adopting a similar non-unanimous jury system, but it was only Louisiana that actually did. (Oregon passed its non-unanimous jury law in 1934). The “Jim Crow Jury” system endured in Louisiana throughout the entire 20th century, helping to establish the state as the incarceration and wrongful conviction capital of the world.
Frampton analyzed data from the Louisiana-based media outlet The Advocate to show the present-day effects of the non-unanimous jury system. For The Advocate’s “Tilting the Scales” news series that ran earlier this year, journalists compiled data from 5,000 criminal jury trials between 2011 and 2017, which included demographic information for more than 40,000 people who were selected for jury pools during that time period. They found that black defendants were more likely to get convicted by non-unanimous juries than white defendants.
The chart below from Frampton’s study shows how the non-unanimous verdict policy has essentially silenced the votes of black jurors in these cases:
This chart shows that black jurors were more likely to cast “hold-out votes” against the majority than white jurors in cases where non-unanimous verdicts led to convictions. Which means black jurors votes were more likely to be ignored—”empty votes”— in these cases. This was true in parishes where there were only a few black jurors serving in trials and in parishes where black jurors were in abundance. In New Orleans, white and black residents served on juries in roughly equal numbers (during the study’s sample time period) but in the cases where non-unanimous convictions were rendered, black jurors cast twice the number of “empty votes” that white jurors did. Writes Frampton, “Nonunanimity serves to mute the impact of nonwhite jurors even when such jurors are not, in numerical terms, ‘minorities.’”
The data also shows how discrimination impacts the racial composition of juries before the trial phase even begins. Prosecutors have wide (but not unlimited) discretion to strike people from the jury pool for legal reasons (“For Cause” strikes) or for no legal reason at all, (“peremptory strikes),” and in Louisiana, those strikes fall more frequently on potential black jurors. Though federal and state laws forbid attorneys from excluding people from juries on the basis of race, a prosecutor can come up with any reason at all—it doesn’t even have to make sense—to explain why they have rejected a potential black, Latina, or Asian juror on non-racial grounds.
In Louisiana, prosecutors disproportionately strike black jurors whether the defendant is white or black, but they do it even more often in cases with black defendants. Writes Frampton, “The frequency of strikes against black potential jurors was 181 percent of what we would expect if strikes were doled out in a racially balanced manner.”
It’s perhaps because of the revelations from The Advocate’s data that soon after it ran its news series on the matter, Louisiana lawmakers passed a law (unanimously!) to seal all further juror records. Whatever information might be cloaked by that gesture, though, the future of racist jury selection and outcomes is now bleak due to Tuesday’s vote to eliminate non-unanimous juries.
This new law doesn’t kick in until 2019, but when it does, prosecutors will have to recalibrate their approach to picking jurors. They can no longer rely on the convenience of only needing to persuade ten out of twelve people deciding a case. If just one juror is unconvinced, then the jury deadlocks or it’s a mistrial, as is already the case in 48 other states of the U.S.
Norris Henderson, executive director of the organization Voices Of The Experiences (VOTE), has been organizing and building a reform coalition to overturn “Jim Crow jury” policies for years. He himself spent decades in prison after being convicted for murder by a 10-2 jury before being exonerated and released in 2003. He called Tuesday’s vote “the biggest game changer against mass incarceration” in Louisiana.
“In the past, it was like being in a 100 yard-dash, and the prosecutor had been spotted 20 yards,” said Henderson. “There’s no way you could catch up with him. But now that shoe is on the other foot and we now all get to start at the same one-yard line to see who’s the fastest and can finish the race.”
The new mandate for unanimous jury verdicts complements the passing of a law in Louisiana earlier this year that restores voting rights to people who’ve been convicted of felony crimes, which is also a legacy of post-Reconstruction efforts to disenfranchise African Americans. Writes Frampton about that era: “the exclusion of black jurors from the jury box, in tandem with the exclusion of black voters from the ballot box, served as a key lever for the reassertion of white supremacy.”
Today, the restoration of voting rights for people convicted of felonies and the establishment of unanimous jury laws, together, crumbles that assertion.
“It’s a one-two punch on Jim Crow,” said Will Harrell, senior policy counsel for VOTE. “We got him against the ropes. We’re not saying we knocked him out, but we have the momentum and we’re gonna keep on slugging him.”