Guest column: Non-unanimous jury verdicts steeped in racist past _lowres

Marjorie Esman

Willie Dorsey and John O’Dowd currently sit at Angola facing life without parole. Both of their original trials ended in mistrials. When tried a second time, both were convicted by a jury vote of 10-2. This would be unremarkable except that in any state other than Louisiana or Oregon, they would have been acquitted, because only Louisiana and Oregon allow verdicts by less than a unanimous vote of the jury in noncapital cases.

Given Louisiana’s high incarceration rate and stubbornly high crime rate, it’s worth asking whether the non-unanimous jury system has any bearing on public safety. The shameful truth is that Louisiana allows convictions on a less than unanimous vote for one reason: to make it easier to send black men to prison. That’s the ugly history behind our unusual law, which does nothing other than make it easier to send innocent people to prison.

Almost as soon as Louisiana built its first penitentiary in Baton Rouge in 1835, the state struggled to afford housing and caring for convicts. To save money, it began leasing convicts to farm and plantation owners, for a profit when possible. In 1844, the state leased the prison and all the prisoners to a private company. In 1869, the state sold the lease to former Confederate Maj. Samuel James, who leased and later bought Angola Plantation and moved the prison there.

By 1880 — three years out of Reconstruction — Louisiana’s white land owners still struggled to replace free slave labor. In response, the Legislature crafted the “Majority Rule,” designed to create more convicts, especially freed blacks, to increase the for-profit labor force. The mechanism was to allow juries to convict without a unanimous vote, at the time, 9-3 (now 10-2). Making convictions easier meant more prisoners, and more prisoners meant more labor to lease for profit. (In Oregon the history is equally ugly; it stems from the early 1930s when the Ku Klux Klan mounted a major paid recruiting campaign — led by a man from Louisiana — coinciding with strong anti-Jewish sentiment.) This history is recounted in a recent book by Thomas Aiello titled “Jim Crow’s Last Stand: The Non-unanimous Jury Verdict in Louisiana” (LSU Press, 2015).

In spite of its history, the non-unanimous jury receives little attention in Louisiana. But the Orleans Public Defender’s office estimates that 80 percent of convictions in Orleans Parish are non-unanimous. At the same time, Orleans Parish has the highest rate of wrongful convictions in the U.S. The rates of non-unanimous convictions are lower elsewhere in the state, but the result is the same: People are convicted here who wouldn’t be elsewhere, many of them wrongly. In 2014, the Innocence Project of New Orleans estimated that almost half of its eligible exonerees had non-unanimous verdicts. That’s a lot of innocent people who wouldn’t have been convicted elsewhere.

What’s wrong with non-unanimous juries?

Many studies have compared unanimous with non-unanimous juries, from the process to the integrity of the decisions, and the results are incontestable. Non-unanimous juries are less thorough, jurors deliberate less, discuss fewer key categories and end deliberations faster. As a rule, non-unanimous juries reach quicker and more incorrect verdicts. When juries can disagree among themselves, they are far more likely to make a mistake and send an innocent person to prison.

Incarcerating the innocent has enormous consequences not just for the person whose life is destroyed and for that person’s family, but also for public safety. It means that the actual perpetrator remains at large. We don’t do anyone a favor when we convict the wrong person. Easier convictions don’t make us safer, as we see in New Orleans.

The non-unanimous jury verdict was crafted for all the wrong reasons. It was designed to increase profits of private landowners by locking up black men, rather than to enhance public safety. It’s time for Louisiana to join 48 other states by ending this unfair and unreliable practice. We shouldn’t lock up someone for life unless we know for sure that person is guilty. That’s fair, just, and sensible — and also keeps us safer.

Marjorie Esman is executive director of the American Civil Liberties Union of Louisiana.