The longshot campaign to require unanimous jury verdicts in Louisiana will face its sternest test to date this week, when a House committee votes on a measure that would end the state's unique practice of sending people to prison – sometimes for life – with only 10 of 12 jurors consenting.
The Committee on Administration of Criminal Justice will hear the bill Wednesday. It cleared the Senate earlier this month, narrowly netting the required two-thirds majority.
The House committee of 10 Republicans, 8 Democrats and one member without a party affiliation is led by Rep. Sherman Mack, R-Albany. Should it clear his committee with a simple majority, the bill would proceed to the full House, where it again would need a two-thirds vote.
The legislation, authored by Sen. JP Morrell, D-New Orleans, would place on the Nov. 6 ballot a measure to amend the state constitution to require unanimity for all felony jury verdicts.
Currently, only 10 of 12 jurors must agree in serious felony trials. The change would apply to defendants on trial for crimes committed on or after Jan. 1, 2019.
Rep. Joe Marino III, No Party-Gretna, said he favored placing it on the ballot. Marino noted that lesser felonies in Louisiana are tried before 6-member juries that must reach consensus.
“You have to have a unanimous verdict for less serious felony offenses, but for a more serious felony you do not. To me that never made sense,” Marino said, adding, “All we’re trying to do is put it on the ballot.”
Louisiana is one of only two states – the other being Oregon – that allow split verdicts in felony cases, under laws that the U.S. Supreme Court upheld in 1972.
Louisiana’s version came first, enshrined in the state constitution in 1898 during a notorious convention marked by overt calls to reassert white supremacy in the state and rid the voter rolls of African-Americans.
Unlike Louisiana, Oregon requires unanimous juries in murder trials.
A year-long investigation by The Advocate found that the 120-year-old law continues to disadvantage black defendants more than whites, while diminishing the voices of black jurors, who are more likely to dissent from the majority view.
About 40 percent of convictions by 12-member juries ended with one or two holdout jurors, according to an analysis of nearly 1,000 trials conducted from 2011 to 2016.
The powerful Louisiana District Attorneys Association was originally opposed to Morrell's bill but has since taken a neutral stance -- though some district attorneys are lobbying their local lawmakers individually to reject it.
The bill’s chances in committee are uncertain, though Morrell and some advocates are cautiously optimistic.
“I think it will get a fair hearing,” Morrell said. “We’re getting a pretty positive response. I haven’t heard as many ‘hell no’s’ as I thought I would. But I think it’s premature to say it will get through.”
Defense lawyer S. Christie Smith IV, a leading advocate of changing the law, said the bill “is one of the few issues in this fractured Legislature that is receiving bipartisan support.”
Smith noted that some legislators are drawn to the unanimity requirement on “originalist” constitutional grounds, while others are troubled by the law's racist backstory.
Most members of the committee “are keeping their votes to themselves," Smith said. "But we feel like if everyone shows up, it’s going to get out.”
Mack, the committee chairman, has authored a separate bill that would restore felony probation terms from three years to five years. Some critics describe the effort as a wider threat to last year’s “justice reinvestment” package, a slate of bills that aimed to reduce the state’s notoriously high incarceration rate and funnel the savings into programs to help lower recidivism.
If Mack's committee does pass the jury unanimity bill, its prospects on the House floor are perhaps even more dicey, given the two-thirds requirement.
“It’s clear that the majority of the House supports it, but getting to the supermajority is a different animal,” Smith said.
Morrell said he is still seeking the ideal House member to shepherd the bill through the lower chamber.
“There’s a lot of opportunity here to try and have some bipartisanship in getting this passed, but trying to find the right sponsor has been difficult,” he said. “I’m just trying to find someone with the right kind of credibility.”
-Staff writer Gordon Russell contributed to this story.