For the first time since its birth in the Jim Crow era, a Louisiana law that allows juries to return non-unanimous verdicts in felony trials will go directly before state voters in a referendum, after the state House of Representatives voted 82-15 on Monday to place a proposed constitutional amendment to end the practice on the ballot.
The vote means that, barring an unlikely procedural hiccup, Louisiana voters will decide Nov. 6 whether to join 48 other states in requiring unanimous jury verdicts in all felony trials.
"It's time Louisiana got it, and it's time we got on board," said Rep. Sherman Mack, R-Albany, who led support for the bill on the House floor.
The historic vote drew applause from the House chamber, capping off an improbable roll through the Legislature for a bill that was viewed as a Hail Mary when Sen. J.P. Morrell, D-New Orleans, introduced it in early March.
Liberal advocacy groups including the American Civil Liberties Union and the Southern Poverty Law Center have been campaigning to change the law for years. But over the past few weeks, conservative groups such as the Louisiana Family Forum and Americans for Prosperity also got behind it.
Meanwhile, the powerful Louisiana District Attorneys Association, which initially opposed it, backed off and took a neutral position.
Until this year, the state’s controversial split-verdict law hadn't been debated in the Legislature in at least several decades, if not since its inception in the late 19th century.
The bill narrowly cleared the Senate by the required two-thirds majority in early April before arriving to Monday's vote in the House. Because the bill was amended in the House — to clarify that the law, if adopted, would not be retroactive — it must return to the Senate for concurrence in the change. But that is seen as a perfunctory step before its formal placement on the ballot.
State voters will be asked on Nov. 6 whether they support requiring unanimous verdicts in all felony trials for crimes committed on or after Jan. 1, 2019.
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Calling the referendum, which requires only a simple majority of voters to pass, does not require approval from Gov. John Bel Edwards. Edwards nevertheless has stated his support for changing a law that was born in white supremacy and continues to disadvantage black defendants more than white ones, according to an intensive review of six years of felony trials in Louisiana by The Advocate.
Mack, who is better known for pushing back against portions of the criminal-justice reform package that passed last year, admits he was an unlikely candidate to present the bill on the House floor.
“About six weeks ago I was a ‘No,’ ” he said in an interview after the vote. He said Morrell asked him to think about it and pray on it.
He did, and he also researched the racist history behind the law, he said.
Mack noted a political risk in his change of heart: His political aspirations include becoming district attorney of Livingston Parish or state attorney general, he said.
“On this issue, I just felt it was the right thing to do,” he said. “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.”
Ed Tarpley, a conservative former Grant Parish district attorney who has become a leading advocate for changing the rule, said he thinks a lot of lawmakers came to the same epiphany.
“The time was right. All the people needed to know was the truth about this evil, wicked law,” Tarpley said. “I think that’s what happened with a lot of people. God changed people’s hearts on this law that’s been a cloud on our criminal justice system.”
Whether voters agree remains to be seen, but Tarpley said he has run across “shock and dismay” when he talks to Louisianans who were unaware of the split-verdict law.
“It’s something that once people understand what the truth is, they want to get rid of it,” he said.
“It demonstrates there are some DAs realizing where we need to be on this issue in terms of the fairness and reliability of our justice system,” said William Snowden, an Orleans Parish public defender who founded the Juror Project, an initiative to increase diversity on Louisiana jury panels.
Because it involves a constitutional amendment, the bill needed 70 votes to clear the House, a bar it cleared by 12 votes. Twelve of the 15 "nay" votes came from members of the Rural Caucus. The other three were cast by Republicans from the New Orleans suburbs: Reps. Cameron Henry, Scott Simon and Kirk Talbot.
Because the bill passed the Senate first, Morrell's bill took precedence in the House over an identical bill authored by Rep. Edmond Jordan, D-Baton Rouge.
The decision to let voters decide on the state’s abnormal verdict law — the first time they've been asked to weigh in specifically on it — came 120 years and two days after delegates at an overtly racist convention ratified a state constitution that enshrined non-unanimous verdicts in state law for non-capital felonies.
The delegates agreed then to allow a serious felony conviction with as few as nine of 12 jurors in agreement.
With the change, Louisiana broke with every other state and centuries of Anglo-Saxon legal tradition that cast the need for unanimity as a fundamental aspect of the right to a jury trial.
Louisiana remained on its own in allowing split verdicts until 1934, when Oregonians, irate over a lone holdout in a high-profile murder trial, voted to change that state’s constitution to allow 10-2 verdicts.
A few other states have pondered similar moves but ultimately rejected them, leaving Louisiana and Oregon alone in allowing split verdicts. The U.S. Supreme Court upheld the two states’ verdict laws in a pair of nonunanimous decisions in 1972. The high court ruled that unanimity is required in all federal trials but that states could tinker with their own verdict rules.
A year later, Louisiana delegates revised the law in a new constitution that now requires 10 jurors to agree on a conviction or acquittal.
To many defenders of the split-verdict law, the 1974 constitution, which remains in effect today, “cleansed” the law of its original racist overtones.
Absent statistical evidence of a disparate impact from the law today, those defenders have argued, its ignominious history isn’t enough to warrant a change.
The Advocate’s analysis of nearly 1,000 trials with split verdicts found that 40 percent of felony jury convictions come with one or two holdout jurors, and black defendants are 30 percent more likely than white ones to be convicted by juries that don't reach unanimity.
In East Baton Rouge Parish, where the newspaper was able to examine the votes of individual jurors in most cases, records show that black jurors were 2.5 times more likely than white ones to vote against conviction in cases with split verdicts.
Advocates for a change have described Louisiana’s trial system as “schizophrenic.”
They note that unanimity is required for juries in death-penalty cases, and also for lesser felonies that are tried before six-member juries, but not for those felonies in which the punishment upon conviction is “necessarily at hard labor.” Many lawyers believe it's easier to get 10 of 12 jurors to support a conviction than six of six, with the law thus giving prosecutors a perverse incentive to "upcharge" defendants in some borderline cases.
Louisiana's law goes further than Oregon's by allowing split verdicts in murder cases where the penalty is mandatory life in prison without the chance of parole, but not death.