Louisiana Voters to Decide on Split-Verdict RuleOctober 10, 2018

In November, voters will decide on a ballot measure to abolish a century-old remnant of the Jim Crow era — a constitutional provision that allows a felony conviction even when jurors do not agree that the accused is guilty.

Louisiana is one of only two states in the country that permit a defendant to be convicted of a serious felony, including murder, when only 10 of 12 jurors agree on his or her guilt.

The only other state that allows split jury decisions is Oregon, which at least requires unanimity in murder cases. Every other state requires that jurors reach a unanimous decision in order to convict.

Racist Roots

During Reconstruction,130,000 black Louisianans registered to vote in a state where about half the population was black. A state constitutional convention was convened in 1898 to mitigate this threat to white political control through "the purification of the electorate." As its leader, E.B. Kruttschnitt, put it, the convention's goal was to eliminate "the mass of corrupt and illiterate voters who have during the last quarter of a century degraded our politics."

By 1898, Congress had made it illegal to exclude people from jury service "on account of race, color or previous condition of servitude" and the Supreme Court had struck down West Virginia's blanket ban on black jurors. Most historians believe that, to preserve white impunity for crimes against black people and ensure prosecutors' ability to secure convictions against black defendants, constitutional provisions were enacted to ensure that, even if a few African Americans made it onto a jury, their votes would not matter.

The 1898 state constitution, which became law without a public vote, provided that 9-3 verdicts were sufficient to convict people of serious felonies. It also provided that misdemeanors would be tried before judges, not juries, and lesser felony offenses would be tried by juries of just five members.

Thomas Semmes, a former Confederate senator who headed the convention's judiciary committee, boasted that the delegates had fulfilled their mission "to establish the supremacy of the white race in this State to the extent to which it could be legally and constitutionally done."

Split Verdicts Today

The split-jury law remained in force until 1973, when lawmakers changed the requirement to 10 jurors out of 12 for serious felony cases, and adopted 5-1 criminal verdicts for lesser felonies instead of unanimous 5-juror verdicts.

The latter provision was struck down by the Supreme Court in 1979; "six-pack" juries now must return unanimous verdicts. But the Court has upheld nonunanimous verdicts in state courts.

Today, split verdicts are routine in Louisiana. The New Orleans Advocate reports that, on average, a split verdict sends one person to prison every five days — about half with sentences that amount to death in prison.

Analyzing about 3000 felony trials over six years, the Advocate found that 40 percent of nearly 1000 convictions rendered by 12-member juries were split verdicts.

When the defendant was black, the proportion went up to 43 percent, compared to 33 percent for white defendants, reporters found. In three-quarters of the cases with convictions, the defendant was black.

Non-unanimous juries have also been criticized as unreliable, because jurors have no incentive to thoroughly deliberate once 10 members agree. Louisiana has the second-highest rate of exoneration in the country. Mother Jones reported that about 40 percent of exonerees represented by the Innocence Project New Orleans were convicted by non-unanimous juries.

A Growing Consensus for Change

In May, the Louisiana legislature overwhelmingly approved a constitutional amendment to abolish the split-verdict rule, paving the way for voters to decide the ballot measure in November.

Sponsoring lawmakers cited the rule's racist roots in support of reform. State Senator J.P. Morrell (D-New Orleans) said the split-verdict rule was part of an effort to maintain white supremacy after the Civil War.

After his bill passed the House by a vote of 82-15, he said, "I cannot think of a bigger civil rights thing we've done in my lifetime."

Ed Tarpley, a Republican and former district attorney who spearheaded the effort to get the initiative on the ballot, told Mother Jones that there are no concerted efforts against the measure, and that it has bipartisan appeal.

"The non-unanimous jury [law] hangs over Louisiana like a cloud," Mr. Tarpley said. "It has deprived citizens in our state of one of our most precious rights, which is the full protection of the right to trial by jury and the unanimity of the jury."