Justice is not about working the easy way; it’s about working the right way. But the criminal justice system in Louisiana is not right — at least compared to 48 other states.
Louisiana and Oregon make it easier to convict someone of a crime by allowing non-unanimous jury verdicts. This means the state of Louisiana can take away someone’s freedom and lock him or her in a cage simply by convincing 10 out of 12 jurors that the accused is guilty.
But why does Louisiana think this is right? It’s a timely question, one that will be taken up in Judge Arthur Hunter’s court this morning*.
A natural starting point for this investigation is the Louisiana Constitutional Convention of 1898. During this convention, 138 white delegates thought they needed to figure out what they were going to do with all of these black people who were no longer forced to work against their will.
History does not suggest that the delegates were concerned for the overall well-being of former slaves. They were concerned about making money off them.
Slavery was big business in Louisiana. Lots of land plus lots of slaves equaled lots of money — a simple enough equation for the privileged, property-holding white male “entrepreneur.” When slavery became illegal, Louisiana and other states decided just to call it by another name: the convict leasing system. Lock these people up and then sell their labor.
The racist intent behind the original threshold for a non-unanimous jury verdict count of 9-3, embraced by the 1898 Louisiana Constitutional Convention, was clear: Keep black people in their place. Many of those delegates thought black people’s place was in chains. They wanted to make it easier to convict black people of crimes in order to place them back in a position where they would have to work for free.
Delegates wanted to place black people back in a position to be profitable for the land owners, in a position where blacks would know their status in our society — at the bottom. Thomas Semmes, one of the delegates to the 1898 convention, declared, “Our mission was, in the first place, to establish the supremacy of the white race.”
Knowing that, any product of that convention must be reconsidered. And the non-unanimous jury verdict was reconsidered at the Louisiana Constitutional Convention of 1973.
Surely, times had changed. In 1974 Louisiana elected the first African-American to the Legislature since Reconstruction: state Sen. Sidney Barthelemy, later a mayor of New Orleans. Was this a sign of a post-racial Louisiana? Not quite.
The convention delegates did not get rid of non-unanimous jury verdicts; instead, they changed the majority needed for conviction from 9-3 to 10-2. Baby steps — a way to continue minimizing the impact of black people as they began to find their way onto previously all-white juries.
The 1973 delegates explained their change to 10-2 under the mask of “judicial efficiency.” But, as Southern University law professor Angela Allen-Bell points out in her law review article about non-unanimous juries, the racist 1898 legislators also defended non-unanimous jury verdicts in the name of “efficiency.” So is there really a difference?
There is a difference in the constitutional protections we have here in Louisiana under the Sixth Amendment of the U.S. Constitution. The very bedrock and lifeblood of our criminal justice system is the right to a fair jury trial. But that right does not fully apply once you enter this boot-shaped state with a bootleg jury system.
When a verdict is returned with 10 voting guilty and two voting not guilty, clearly prosecutors have not proven their case beyond reasonable doubt.
Of course non-unanimous jury verdicts have their proponents. Prosecutors love them because they make their work easier. They disagree with the position that non-unanimous jury verdicts are unconstitutional. Some prosecutors point to the majority rule of the U.S. Supreme Court to support their argument.
But it’s hypocritical to claim guidance from the federal system in one instance and not another, given that the federal jury system requires unanimous jury verdicts, including in Louisiana. Moreover, you should not compare a trial in front of a jury, with witnesses, evidence, and a person’s liberty on the line, to written briefs, oral arguments and questions from judges, the stuff of Supreme Court proceedings.
Taking someone’s liberty away should not be easy. Branding someone a felon should not be easy. Non-unanimous juries do not require prosecutors to fully do their jobs. When prosecutors go to trial, they are supposed to convince the jury the accused is guilty beyond reasonable doubt. When a verdict is returned with 10 voting guilty and two voting not guilty, clearly the prosecutors have not proven their case beyond reasonable doubt.
What’s the big deal about having unanimity when it comes to determining someone’s innocence or guilt? For one thing, it gives us faith in the system. The American Bar Association says verdicts are more accurate and reliable when they come from a unanimous jury.
We chose “beyond a reasonable doubt” as the standard because we want the criminal justice system to require confidence in the accused’s guilt, especially when one’s liberty is at stake.
Furthermore, research demonstrates that requiring unanimity can influence the outcome of the case. There are longer deliberations. This gives us a sense the jurors did not rush to judgment, they took their time and considered all of the facts and evidence.
Additionally, the research shows that the deliberation process itself is different when we require unanimity. In jurisdictions that allow non-unanimous jury verdicts, there is a verdict-driven deliberation. This means the jurors are focused on reaching a verdict first, as opposed to evaluating the evidence, whereas evidence-driven deliberations focus on reviewing the evidence presented before deliberating about innocence or guilt.
Jury duty is supposed to be one of those democratic processes where your vote actually counts. However, when we allow any of the votes to be overridden, we are telling some jurors that their vote does not matter. This disenfranchisement has particularly impacted the black community and their role on criminal juries.
The creation of non-unanimous jury verdicts was originally motivated by racism — against blacks in the Louisiana context, against Jews at an earlier time in Oregon’s history, as explained in Thomas Aiello’s book, “Jim Crow’s Last Stand: Non-unanimous Criminal Jury Verdicts in Louisiana.” It has evolved into a system that sometimes marginalizes blacks on the jury by allowing a white majority to ignore, rather than convince, those who disagree.
The Equal Justice Initiative, a nonprofit committed to ending mass incarceration, pointed this out through a study demonstrating that in nearly 80 percent of the jury trials in Jefferson Parish, there is no effective representation of black people. That’s because even if two black people make it onto the jury, their voices, opinions, and perspective on the case can be ignored if 10 other jurors vote differently.
Non-unanimous jury verdicts are another reason we need more diversity on juries. The Juror Project aims to increase diversity of jury panels, based on the understanding that more diversity leads to more fairness. I founded The Juror Project after going to trial numerous times in New Orleans with juries that did not accurately reflect the city’s diverse population.
The research shows that when there is more diversity on juries, there are more acquittals. Reprieve Australia, an organization founded by Melbourne lawyers in support of defendants in death-penalty cases, analyzed all the criminal jury trials that took place in Caddo Parish over a 10-year period, from 2003 to 2012. During that 10-year period, not one trial resulted in an acquittal when the jury was made up of 10 or more people who weren’t black. Ten years and not one acquittal!
Yes, Louisiana has the highest rate of incarceration, but it also has the highest rate of exoneration in the country after convictions are determined to be flawed as the result of prosecutorial misconduct, suppressed or ignored evidence and other abuses of the law. A high exoneration rate is evidence that our juries are not delivering reliable verdicts.
So what happens when we get some black folks on the jury? The research showed that when there were three or more black jurors, the acquittal rate increased to 12 percent. When there were five or more black jurors, the acquittal rate increased to 19 percent.
That doesn’t mean black people get on juries and automatically vote “not guilty.” It means diversity has a direct impact on the outcome of a case — a direct impact on the outcome of justice. Having a diverse jury can address impediments to justice such as implicit bias and racial anxiety among the jurors. Equally important, having a diverse jury helps to show that race did not play a role in the jury’s verdict.
The criminal justice system is failing in Louisiana. It is failing because we have a “three strikes” law that does not differentiate between violent and nonviolent offenders. Heroin addicts, for example, face mandatory life in prison on their third conviction for heroin possession.
It is failing because we sentence people to life without parole, believing that they will never be more than the worst thing they have ever done in their life — even when they reach age 70.
It is failing because in 2017 we still have a vestige of Jim Crow on the books with non-unanimous jury verdicts. It is time for Louisiana to redefine what justice looks like and restore faith in the system — a system we need to work the right way.
William C. Snowden is a public defender in New Orleans and the founder of The Juror Project, which works to increase the diversity of juries and change people’s opinions about jury duty.
*In a ruling Thursday, Judge Hunter refused a request to declare non-unanimous juries unconstitutional, stating that defense attorneys for Christopher Lee, who awaits trial for murder, had failed to establish that the law was racist in intent or in its impact on black defendants.