Vote “Yes” to Amendment 2 on November 6

By October 24, 2018 Criminal Justice

On November 6, Louisiana voters will have the opportunity to eradicate a troubling vestige of the Jim Crow era: the non-unanimous felony verdict. Even though the drafters of the law allowing non-unanimous felony verdicts acted with admittedly discriminatory intent, the rule still stands to this day. “Mostly guilty” is simply not enough to convict a person for a crime, as recognized by 48 other states. We respectfully urge voters to make Louisiana the 49th by voting “yes” to Amendment 2.

48 states require unanimous jury verdicts to convict a defendant for any felony.

Amendment 2 proposes to require unanimous jury verdicts for any felony offense committed on or after January 1, 2019. 1 Currently, criminal cases tried in Louisiana’s state courts only require a unanimous verdict when the defendant is facing the death penalty.2 All other felony defendants may be convicted by a non-unanimous jury, as long as at least 10 of 12 jurors concur in the verdict.3 Louisiana’s split-jury rule is an anomaly in the United States criminal justice system, where unanimous verdicts are the norm. In federal court, unanimous verdicts are mandatory and non-waivable in any criminal case tried by a jury.4 Forty-eight states require unanimous jury verdicts for any felony conviction. Even Oregon – the only other state that permits non-unanimous felony verdicts – requires unanimity to convict a defendant for murder.5 As such, Louisiana is the only state that will allow a non-unanimous jury to convict a defendant for any noncapital felony offense, including those punishable by a mandatory term of life in prison.6 It has been estimated that approximately 40% of all trial convictions in Louisiana are rendered by a non-unanimous jury.7

The split-jury rule was introduced in the Louisiana Constitution of 1898 as “part of a raft of deliberately discriminatory measures” fueled by the racial animosity of the Reconstruction era.8 All 134 delegates in attendance at the Louisiana Constitutional Convention of 1898 (“the Convention”) were white, and none remained “secretive about their purposes.”9 In his closing address at the Convention, Judge Thomas Semmes stated: “We met here to establish the supremacy of the white race.”10 Judge Semmes was followed by Judge Ernest Kruttschnitt, President of the Convention, who openly scorned the equality demanded by the Reconstruction Amendments:

We have not drafted the exact Constitution that we should like to have drafted; otherwise we should have inscribed in it, if I know the popular sentiment of this State, universal white manhood suffrage, and the exclusion from the suffrage of every man with a trace of African blood in his veins. We could not do that on account of the Fifteenth Amendment to the Constitution of the United States, and, therefore, we did … what has been referred to approvingly by the Supreme Court of the United States, in the late case of [Williams v. State of Mississippi, 170 U.S. 213, 222 (1898)] as … “swee[ping] the field of expedients,” but they were permissible expedients, and that is what we have done in order to keep the negro from exercising the suffrage. What care I whether the test we have put be a new one or old one? What care I whether it be more or less ridiculous or not? Doesn’t it meet the case? Doesn’t it let the white man, and doesn’t it stop the negro from voting, and isn’t that what we came here for?11

The Convention’s admitted goal of disenfranchising Louisiana’s black voters clearly influenced the decision to constitutionalize the split-jury rule, which initially permitted felony convictions by concurrence of only 9 jurors. 12 This is evidenced by the fact that

[w]hen it passed the majority verdict scheme, the Convention had before it the “Statement of Registered Voters 1897 and 1898” which is contained in the Official Journal itself. Blacks represented 14.7% of all citizens registered to vote in Louisiana as of January 1, 1898 (12,902 of 87,240). Proportionate representation on juries would have seen an average of two black jurors per trial. The selection of nine votes for a verdict served to guarantee white majority control over jury verdicts: black votes could be ignored.13

State Sen. J.P. Morrell (D-New Orleans), sponsor of the bill that led to Amendment 2, stated that the split-jury rule “is something that is wholly unnecessary that was born of [a] fusion of racism and disenfranchisement …. It’s a self-defeating, illogical position to have two jurors say ‘we don’t think he did it,’ then [have] prosecutors to say, ‘We met our reasonable doubt standard.’”14 State Rep. Sherman Mack (R-Albany) delivered a similar message when he presented Sen. Morrell’s bill to the Louisiana House of Representatives: “It’s time Louisiana got it, and it’s time we got on board …. This sends a message to the rest of the country that not all of us think like some of us think. We’re one of two states that do this. You have to ask yourself why, and I think everyone knows why.”15.

Amendment 2 has become an entirely nonpartisan issue, garnering the rare shared support of Louisiana’s Republican, Democratic, and Libertarian parties,16 along with numerous diametrically opposed organizations such as the Louisiana Family Forum, an influential conservative Christian advocacy group,17 and Our Revolution, a progressive grassroots group spun out of Bernie Sanders’ presidential campaign.18 Sen. Morrell admitted, “Very seldom do we have something of this magnitude, this historic, that enjoys such wide bipartisan support.”19 Other public officials and organizations who openly support Amendment 2 include, but are not necessarily limited to:

• American Bar Association.
• American Civil Liberties Union.
• Americans for Prosperity, a Koch-founded conservative political advocacy group.
• FWD.us, backed by Mark Zuckerburg.
• Louisiana Conference of Catholic Bishops.
• The Louisiana Republican Judiciary PAC.
• Bradley Burget, District Attorney – Concordia & Catahoula Parishes.
• Michael Cassidy, District Attorney – Jefferson Davis Parish.
• Joel Chaisson, District Attorney – St. Charles Parish.
• Paul Connick, District Attorney – Jefferson Parish.
• Sam D’Aquilla, District Attorney – East & West Feliciana Parishes.
• Hillar Moore III, District Attorney – East Baton Rouge Parish.
• Perry Nicosia, District Attorney – St. Bernard Parish.
• Charles Riddle, District Attorney – Avoyelles Parish.
• Kenneth Polite, former U.S. Attorney for the Eastern District of Louisiana.
• James Stewart, District Attorney – Caddo Parish.
• Keith Stutes, District Attorney – Acadia, Lafayette & Vermilion Parishes.
• Ed Tarpley, former District Attorney – Grant Parish.
• John Bel Edwards, Governor of Louisiana.
• Tim Hitt, former Monroe Police Corporal.
• Tim Lentz, Covington Chief of Police.
• Craig Webre, Lafourche Parish Sheriff.
• Bryan Zeringue, Thibodaux Chief of Police.

  1. La. Sec’y of State, Statement of Proposed Constitutional Amendments: November 6, 2018, https://www.sos.la.gov/ElectionsAndVoting/PublishedDocuments/ProposedConstitutionalAmendments2018Summaries.pdf (last accessed Oct. 23, 2018).
  2. [La. Const. Ann. art. I, § 17; La. Code Crim. P. art. 782(A).
  3. Id.
  4. Fed. R. Crim. P. 31(a).
  5. Or. Const. art. I, § 11; Or. Rev. Stat. Ann. § 136.450; see also State v. Lomax, 406 P.3d 94, 99 (Or. Ct. App. 2017).
  6. See, e.g., State v. Mack, 12-0625 (La. App. 4 Cir. 5/6/15); 162 So.3d 1284, 1288, writ denied, 15-1119 (La. 5/13/16); 191 So.3d 1054.
  7. Jeff Adelson, Gordon Russell, and John Simerman, How an abnormal Louisiana law deprives, discriminates and drives incarceration: Tilting the scales, The Advocate (Apr. 1, 2018, 8:05 AM), https://www.theadvocate.com/new_orleans/news/courts/article_16fd0ece-32b1-11e8-8770-33eca2a325de.html
  8. State v. Hankton, 12-0375 (La. App. 4 Cir. 8/2/13); 122 So.3d 1028, 1033, writ denied, 13-2109 (La. 3/14/14), 134 So.3d 1193.
  9. Id. at 1034.
  10. Official Journal of the Proceedings of the Constitutional Convention of the State of La. (“Official Journal”) at 374-75 (Feb. 8, 1898), available at https://babel.hathitrust.org/cgi/pt?id=njp.32101065310607
  11. Id. at 380.
  12. La. Const. of 1898, art. 116, Official Commentary (1899), available at https://babel.hathitrust.org/cgi/pt?id=nyp.33433034029912;view=1up;seq=162
  13. Hankton, 122 So.3d at 1035 (internal citations omitted).
  14. Anthony Izaguierre, Louisiana takes aim at Jim Crow-era jury law, AP (Apr. 14, 2018), https://apnews.com/dea3f20fd2a144aebf5089be65765ba8
  15. John Simerman, ‘It’s time’: Louisiana House backs letting voters decide on controversial jury verdict law, The Advocate (May 14, 2018, 5:20 PM), https://www.theadvocate.com/baton_rouge/news/politics/legislature/article_3b633f84-5798-11e8-a5d1-f361ba45aedc.html
  16. See John Simerman, Louisiana GOP backs constitutional amendment on jury unanimity, The Advocate (Jun. 11, 2018, 6:30 PM), https://www.theadvocate.com/new_orleans/news/article_192dfbf2-6dbe-11e8-97f4-2b3ac52019e5.html; Democratic State Central Committee Endorsed Candidates and Passed Four Resolutions, La. Democrats (Aug. 20, 2018), https://louisianademocrats.org/2018/08/20/updated-democratic-state-central-committee-endorsed-candidates-and-passed-four-resolutions; Facebook, Public Post by the Libertarian Party of Louisiana (May 14, 2018), https://www.facebook.com/LibertarianPartyOfLouisiana/posts/1055682387912178
  17. Views on Two, Unanimous Jury Coalition, https://www.unanimousjury.org/yes-on-2/
  18. YES on Amendment 2, Unanimous Jury Verdict for Felony Trials Amendment, Our Revolution, https://ourrevolution.com/ballot-initiatives/yes-amendment-2-unanimous-jury-verdict-felony-trials-amendment
  19. Gordon Russell, Louisiana’s split-jury verdict law: Voters to have say after final legislative hurdle cleared, The Advocate (May 15, 2018), https://www.theadvocate.com/baton_rouge/news/politics/article_9d504fc4-5861-11e8-8165-2b2f550014c3.html
Brian Capitelli

Author Brian Capitelli

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