Advocates are again looking to the Louisiana legislature to give new trials to hundreds of people across the state who are still in prison based on a non-unanimous jury verdict.  Earlier this week Rep. Jason Hughes, Democrat of New Orleans, pre-filed a bill that would change Louisiana’s code of criminal procedure to grant post-conviction relief to anyone convicted by a split-jury verdict. 

A similar bill last year was voted down along party lines in committee by Republican lawmakers. 

Advocates in favor of the bill argue that the law allowing non-unanimous jury verdicts were the product of Jim Crow-era racism and continued to disproportionately impact Black defendants until the practice was abandoned in 2019. They also argue that split-jury verdicts lowered the bar for the amount of evidence needed to convict someone, and were therefore more likely to result in wrongful convictions. 

“Jim Crow jury verdicts are a stain on our judicial system,” Jamila Johnson, Deputy Director at Promise of Justice Initiative, a legal non-profit that represents people in prison on split-jury verdicts, said in a press release this week. “There have been a lot of suggestions for ways to appear responsive to this systemically racist practice. We applaud Representative Hughes for filing a bill that gives the injuries more than lip service and truly seeks to correct a wrong.”

But others, including the Louisiana District Attorneys Association, which represents prosecutors across the state, argue that mandating new trials for years-old cases would be impractical due to difficulty in tracking down evidence and witnesses, and would necessarily result in the release of individuals they consider to be dangerous.  

Put into the state constitution during a 1898 convention, legal scholars and advocates have argued that the law allowing non-unanimous jury verdicts in non-capital felony trials — where only 10 out of 12 jurors were required to vote to convict a defendant — were part of broader set of Jim Crow laws intended to disenfranchise Black citizens of the state. The split-jury law, they argue, was specifically designed to silence the voices of Black jurors and make it easier to convict Black defendants.  

A Pulitzer Prize-winning investigation by The Advocate in 2018 suggested that Black jurors were more likely than their white counterparts to be a dissenting vote in a non-unanimous conviction, and that Black defendants were more likely to be convicted of by a non-unanimous jury. The Promise of Justice Initiative has estimated that around 80 percent of people still in prison on split-jury verdicts are Black.

But the practice remained legal in Louisiana until 2018, when voters in the state changed the constitution to require unanimous verdicts. That change applied to trials initiated in 2019 and after. Then, in 2020, the United States Supreme Court ruled that non-unanimous jury verdicts were unconstitutional. But that decision only applied to cases on direct appeal, and a subsequent ruling determined that it was not retroactive. 

But the U.S. Supreme Court also left open the possibility that states could act independently to give new trials. (Oregon, along with Louisiana, was the only other state in the country to allow the practice.) Since then, in Louisiana, state appellate courts have issued divergent rulings on whether or not the state should mandate new trials for people with split-jury verdicts, and last month the Louisiana Supreme Court agreed to hear a case that will likely make a final determination on the issue sometime this year. 

The state legislature also has the ability to change state law to require new trials for individuals with non-unanimous convictions, regardless of what the courts decide. That is what Hughes’ bill aims to do, by adding non-unanimous convictions as grounds for post-conviction relief. 

At the 2021 legislative session, a similar bill was brought by Rep. Randall Gaines of LaPlace, but did not make it out of the House Judiciary Committee. Despite hearing over an hour of testimony in favor, and none opposed, the bill was voted down 7-5. 

Instead, a task force was created to convene stakeholders to study the issue. The task force met several times since then, but according to Johnson with PJI, who was a part of the task force, a final meeting was canceled last month, and potential recommendations to the legislature have not been discussed. 

In a statement, Loren Lampert, the executive director of the Louisiana District Attorney’s Association, said that his organization had “not yet considered the specific terms” of Hughes’ bill, and that they also “anticipate additional legislation on the issue.” He said they would be “reviewing all of these proposals in globo.” 

“We look forward to continuing to work with stakeholders on all fronts to best assure the fair administration of justice in a responsible manner that adequately addresses legitimate concerns relating to victims, their families and public safety,” Lampert said. 

Rep. Hughes was not able to be reached for comment.