The Louisiana State Capitol. (Philip Kiefer/The Lens)

A bill that would create a new parole process specifically meant to address the hundreds of people still in Louisiana prisons after being convicted by non-unanimous jury verdicts — which were legal in the state until 2019 — has hit a roadblock in the Louisiana House of Representatives, after amendments pushed by criminal justice reform and civil rights advocates were voted down on the house floor earlier this week.

The bill’s sponsor, Rep. Randal Gaines, Democrat of LaPlace, said he was still working on finding a way to move the bill forward. But he warned that he may pull it altogether if the influential Louisiana District Attorneys Association, which represents prosecutors around the state, won’t agree to changes sought by the reform groups. 

In 2018, Louisiana residents voted to amend the state constitution to repeal the state’s century-old split-jury law, under which defendants in most felony cases could be convicted with as many as two out of 12 jurors voting to acquit. But the change only applied to cases that were initiated in 2019 or later. In 2020, the U.S. Supreme Court ruled that split-jury verdicts were unconstitutional. That decision voided some, but not all, older non-unanimous jury verdicts. (In a subsequent decision, the court refused to apply full retroactivity.) It is estimated that about 1,500 people convicted by split jury decisions — whose cases were not covered by the constitutional amendment or the 2020 Supreme Court decision — in the state remain behind bars.  

Gaines’ bill, House Bill 1077, would not overturn their verdicts. Instead, it would create a special parole panel to consider their cases, including those where the prisoners are not otherwise eligible for parole. 

As it currently stands, the split-jury parole committee proposed in the bill would consist of three former appellate judges or Supreme Court justices, a former district attorney, and a former public defender — all appointed by the Governor — and would be tasked with reviewing cases to determine “whether the non-unanimous jury verdict resulted in a miscarriage of justice.” In doing so, they would only be able to consider the official case record, testimony of the prisoner and victim, and a written statement submitted by the DA of the district where the conviction occurred. 

The committee could then take into consideration why one or two jurors voted to acquit, the length of jury deliberations, the strength of evidence against the defendant, and “any indicia of racial animus in the prosecution,” when determining whether or not the verdict had resulted in a miscarriage of justice.

Gaines has characterized the bill as a bipartisan compromise. It would create a path to freedom for people convicted under the old system, but it would not undo the convictions, which is opposed by many prosecutors, who say that it would force them to retry many of those cases in the interest of obtaining justice for the state and victims of crime. Gaines has said the bill seeks to identify people in prison where there is evidence that they may have been wrongfully convicted — beyond just the fact of their non-unanimous verdict. 

But it has been met with objections by criminal justice reform groups and lawyers who are representing people in prison on split-juries, who argue that because split-jury verdicts were ruled unconstitutional, anyone convicted by one was, by definition, wrongly convicted and is entitled to a new trial, not just a shot at parole. 

Those groups also strongly object to two portions of the version of the bill that passed out of committee last month, which they say would undermine the possibility of people still in prison on split-juries attaining justice.  

The current version of the bill requires a unanimous vote by all five members of the parole committee to grant relief for someone serving a life-sentence. About 60 percent of people who are in prison on split-jury verdicts are serving life, according to a report by the Promise of Justice Initiative. 

The bill, however, would only require a majority vote for individuals without life sentences.  

Another portion of the bill said that the committee would “shall be the exclusive and sole remedy for any petitioner applying for relief on the basis of being convicted by a non-unanimous verdict.”

Jamila Johnson, with PJI, said the provision regarding the “sole remedy” would potentially send a signal to Louisiana Supreme Court justices, who are considering a case that could result in overturning all remaining split-jury verdicts, that they do not have the authority to act on the issue.

Johnson also worries that the provision could also halt negotiations that are taking place in some parishes between district attorney’s offices and people in prison with split-jury verdicts. A number of DA’s offices around the state have signaled their willingness to review some cases with split-jury verdicts, and DA Jason Williams in New Orleans has pledged to review all of them. Advocates argue those pathways would be blocked if the Gaines’ bill passes.

Legislators worry about LDAA opposition 

On Tuesday, Rep. Royce Duplessis, Democrat of New Orleans, brought an amendment to change the bill so that it would only require three of five members of the committee to vote in favor of parole, and remove the language regarding the committee being the “sole remedy.”

During the discussion of the amendments, Rep. John Stefanski, Republican of Crowley, suggested that it was ironic that advocates were pushing for a non-unanimous committee decision. 

“Do you see any irony in the fact that we’re talking about non-unanimous juries, and you’re trying to make the committee non-unanimous?” Stefanski asked on the House floor.

Rep. Edmond Jordan, Democrat of Baton Rouge, however, said that Stefanski misunderstood the actual irony in the proposal. 

“The irony is actually in the bill as it stands right now,” Jordan said. “We are saying the injustice was done because you were convicted by a non-unanimous jury, but in order for you to prove your freedom, it has to be unanimous. That’s the irony.”

Duplessis also said that he believed the standard “is higher when you’re taking away someone’s freedom.” And Rep. Joe Marino, No Party of Gretna, also pointed out that most standard parole hearings only require two members of a three member panel to grant relief.  

Rep. Sherman Mack, Republican of Albany, said that he was concerned that if the amendments passed the bill would lose support of the Louisiana District Attorney’s Association, and ultimately fail — though he didn’t say that he was opposed to the substance of the amendments. 

“My real concern is that I want to get the legislation through, because I believe it’s the right thing to do, and that’s the only reason I’m opposing your amendment,” Mack said. 

Ultimately, the amendment was voted down 67-29. 

On Wednesday morning, following the vote, Gaines said he was still in negotiations with the LDAA. 

“I’m likely to park the bill and not run it unless we can put the bill in the right posture,” Gaines told The Lens. 

It is now scheduled for another debate on the house floor on Tuesday, May 24.  

The bill gives people currently incarcerated on split-jury verdicts one year after the bill is signed into law to file a petition to the committee for parole. 

Earlier this month, the Louisiana Supreme Court heard oral arguments in the case of Reginald Reddick, on whether or not they should require convictions based on split-jury verdicts to be vacated. During those arguments, a lawyer for Attorney General Jeff Landry’s Office, which is opposed to overturning the verdicts, pointed to the bill as evidence that action was being taken on the issue and it should be left up to the political process, not the court, to determine if there should be any remedy for people with old split-jury verdicts.

Nick Chrastil

Nicholas Chrastil covers criminal justice for The Lens. As a freelancer, his work has appeared in Slate, Undark, Mother Jones, and the Atavist, among other outlets. Chrastil has a master's degree in mass...