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For 120 years, non-unanimous juries in Louisiana have been able to send criminal defendants to prison for hefty sentences, including life terms, even when one or two jurors (and at one time in the state’s history, as many as three) jurors had enough reasonable doubt to vote not guilty.

That could all change beginning January 1, 2019, depending on how voters across the state decide on Constitutional Amendment 2.

“In 48 other states, the threshold for conviction is beyond a reasonable doubt,” says Will Snowden, supporter of the Unanimous Jury Coalition and founder of the Juror Project, a non-profit that promotes importance of jury duty and pushes for criminal justice reform through the juror system. “In Louisiana, you can have two doubts.”

A “yes” vote for the amendment, which would end the state’s non-unanimous jury system and require all 12 jurors to agree on a verdict, is the result of a bill sponsored by state Sen. Jean-Paul Morrell, D-New Orleans, during the last legislative session. The measure has received bi-partisan support and efforts to push it have been funded by sizable donations.

Still, there are some who cannot or will not recognize the benefit gained by requiring 12 jurors to agree on a verdict. In fact, leaders of Louisiana District Attorneys Association are more worried that it would be harder to get 12 jurors to agree and more concerned with the possibility of hung juries and the cost of retrials than they are with the actual act of disregarding reasonable doubt or the opportunity to diminish the likelihood of innocent people being sent to prison.

Despite the support in favor of the amendment, Snowden warns that advocates and voters should not consider it a done deal. The Unanimous Jury Coalition has been keeping track of the opposition’s campaign against CA 2, he says, and they have noted ads urging voters to say “no” to the amendment placed in media across the state, particularly in more rural areas.

“Our state’s Attorney General Jeff Landry is the biggest opponent of Constitutional Amendment No. 2,” Snowden says.

That’s why individuals and organizations concerned with criminal justice reform in Louisiana don’t intend to leave anything to chance when it comes to reversing this longstanding injustice. The Unanimous Jury Coalition and Voice of the Experienced (V.O.T.E), a New Orleans-based network of formerly incarcerated citizens, their families and allies that promote criminal justice reform, are just a few examples of groups that are speaking out in favor of Constitutional Amendment 2. They have joined forces to organize a phone bank with the goal of making 50,000 calls before Nov. 6, urging Louisiana residents to vote #YesOn2. And there are other local organizations engaged in similar efforts.

Racist History of Louisiana’s Non-Unanimous Jury System

In Louisiana, only 10 of 12 jurors need to agree on a verdict. In Oregon, the other state that allows non-unanimous jury verdicts, 11 of the 12 jurors must agree in order to render a verdict. While it might seem as though this is the way it has always been, Louisiana’s criminal justice system has not always relied on non-unanimous juries.

Snowden notes that the non-unanimous jury system is “rooted in hate”.

In Louisiana, the non-unanimous system resulted from the 1898 Constitutional Convention, which was held at the urging of state lawmakers that were still Confederate sympathizers and singularly devoted to devising ways to invalidate the rights of freed Blacks.  The convention established literacy requirements, mandated property ownership, instituted poll taxes and then for good measure included a grandfather clause that effectively purged the state’s voter rolls of nearly every Black voter, while ensuring that illiterate, poor Whites that didn’t own property could still vote.

However, because Louisiana was home to one of the nation’s largest populations of free people of color or people of African descent who were free prior to the Civil War—many of whom owned land and were well-educated–it was impossible to eliminate voting rights of every Black man in Louisiana despite the draconian rules established by the 1898 Constitution. So one more rule—the state’s non-unanimous jury rule—was concocted to nullify the voice of any Black men who were still able to vote and by extension serve as jurors. The rule was originally established to require only nine of 12 juries to render agree in order to render a verdict in non-capital felony trials.

“And so, even if there were three Black people on the jury and there are nine White folks, the three Black votes wouldn’t count because all they would need is the nine,” Snowden says. “In Louisiana, it is a vestige of Jim Crow. It is rooted in racism to nullify the Black vote and to make it easier to convict Black folk.”

In short, even if a few Blacks, unaffected the disenfranchising voter laws, remained on voter rolls and found their way on a jury, they would likely be outvoted by the White members. Making sure Black men couldn’t sway criminal trial outcomes, especially in cases where other Blacks were defendants, was especially important to White supremacists and business interests as it was vital to keeping legalized slavery and filling chain gangs and cotton fields with Black prisoners.

That’s a why Snowden and other advocates of the amendment see a “yes” vote for Constitutional Amendment 2 to end non-unanimous jury verdicts as a major step in criminal justice reform in Louisiana.

Louisiana revisited it’s non-unanimous jury system during the 1973 state Constitutional Convention in the wake of a period of racial unrest. It was then that the law was changed to increase the number of votes needed for a verdict from nine to 10.

If Constitutional Amendment 2 passes in the Nov. 6 election, Louisiana will finally join 48 other states in requiring all 12 juries to agree on a verdict.

As for the impact of non-unanimous jury verdicts and exonerations, Snowden says that “12 people so far have been exonerated that were convicted by non-unanimous verdicts.” Perhaps more telling is the Orleans Parish Public Defender’s Office estimate that 80 percent of convictions in Orleans Parish are rendered by non-unanimous verdicts. In each of those convictions, there was at least one, possibly two people that had a reasonable doubt. While Oregon runs a close second with its 11-1 verdict system, Louisiana stands as the only state in the country in which a jury can have two members vote non-guilty and still convict a person to serve hefty prison sentences, including life.

On Nov. 6, the voters of this state have the opportunity to change this system.

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