Louisiana Voters May Dump Rule Allowing Convictions Without Unanimous Verdicts

End of a Jim Crow-era law a potential win for jury nullification.


Jury picture
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Louisiana is infamous for its incredibly high incarceration rate. It is sometimes derisively described as "the world's prison capital," though technically Oklahoma stole its crown this summer.

One of the many ways that Louisiana manages to put so many people behind bars is that it does not require a unanimous jury verdict to convict defendants for felonies. Oregon is the only other state with such rules, and Lenore Skenazy just highlighted how Oregon's rules helped convict an innocent man.

But this fall a referendum may spell the end of the practice in Louisiana. Current law allows a person to be convicted by a jury even when one or two jurors believe he or she is not guilty. Under Amendment 2, Louisiana's constitution would be changed to require a unanimous verdict for anybody charged with felonies.

The state's deviation from typical jury practices dates to the Jim Crow era, the Los Angeles Times notes. It was implemented in 1880 after the passage of the 14th Amendment, which guaranteed former slaves the right to vote and serve on juries. It was designed to make it harder for black jurors to stop the courts from railroading black defendants.

The result? From 2011 to 2016, about 40 percent of convictions in Louisiana had one or two holdouts on the jury. And black defendants were 30 percent more likely than white defendants to be convicted in these cases.

Beyond the racial animus that put the rule into place, keep in mind how it undercuts the possibility of jury nullification. That's when a juror expresses his or her objection to an oppressive law (or an oppressive application of a law) by refusing to convict a defendant on principle. No less than the executive director of the Louisiana District Attorneys Association is using the possibility of nullification as a reason to oppose any changes. The Advocate reports:

"In today's society, getting 80 percent of people in any group to agree on any topic is a phenomenal task," [Pete Adams] said. "Everyone's in their corner. More so than ever, people take their agendas into the courtroom. You're inviting jury nullification."

The amendment does, however, have the support of both the state's Democratic governor and the state's Republican Party. Both the state's House and Senate voted firmly in favor of putting the amendment on the ballot for voters to consider. And while a prosecutors' group may oppose the referendum, so far, according to Ballotpedia, no committees have officially registered to campaign against it. After November, Oregon may be left on its own as the only state that allows for non-unanimous felony convictions.