The sinister origins of non-unanimous verdicts in felony cases

Only two U.S. states still allow juries to convict defendants in non-capital cases without a unanimous decision—but Louisiana reformers are hoping to drop that number to one, wrote Katti Gray at The Crime Report.

Legal reform advocates in that state have joined the local bar association in pushing legislators to require unanimous jury verdicts for most felony convictions.  A victory in their campaign will leave Oregon as the only holdout allowing non-unanimous verdicts in felony cases, except those in which the convicted person could face the death penalty.

Even though the outcome remains uncertain, the debate over non-unanimous juries in Louisiana has thrown new light on long-ignored issues relating to race and criminal justice.

The reformers, including the Louisiana branches of the American Civil Liberties Union and the Innocence Project,  argue that state lawmakers must act because the state’s courts have refused to consider changing a practice that was instituted in 1898, when the largely white legislature voted to amend the state constitution to allow 9-to-3 jury votes for felony convictions.

In the 1970s, the allowed majority was changed to 10.

Today’s critics of that constitutional amendment, including Angela Bell, a Southern University Law Center professor whose research on non-unanimous juries was published last year in the Mercer Law Review, say those white legislators mainly were aiming to re-subjugate formerly enslaved blacks., and to supply assorted white-run industries with free labor from a prison population that long has been overwhelmingly black. 

After the Civil War, Louisiana was among southern states relying on “convict leasing,” paying state prisons for convicted persons to labor on plantations and for privately owned business.

“These plantation owners thought to themselves, ‘now that we can lease convicts, we need to get the convicts,’” Bell said.  “Things that were minor infractions became major sentences …

“That’s the scandal, systemically. All of this was born from bad intention. If you understand this law, then you understand why Louisiana is the forerunner in mass incarceration.”

“Sir William Blackstone called the jury a sacred bulwark of liberty,” he told The Crime Report. “This was such a precious thing. Unanimity is the core of it … It’s the unanimity of the jury that serves the rights of mankind.”

That Louisiana and Oregon are outliers on that front owes to racial and religious bias, author Thomas Aiello wrote in “Jim Crow’s Last Stand: Nonunanimous Criminal Jury Verdicts in Louisiana,” published in 2015.

In Louisiana, blacks were targets of non-unanimous jury proponents. In Oregon—where felony defendants can be convicted by a vote of 11-to-1—Jews were the targets, contends Aiello, a history and African American studies professor at Valdosta State University in Georgia.

In Oregon, the Office of Public Defenders has publicly voiced its opposition to non-unanimous juries. But no campaign as widespread as Louisiana’s exists in that state.

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