While Louisiana fought the Civil War, Booker T. Washington was a child slave. After the Civil War, both he and the state of Louisiana had a new course to charter. Louisiana, faced with the emancipation of approximately 331,000 slaves, had to confront issues including voting rights, education and criminal justice. Washington was tasked with shedding his identity as an object—a piece of property—and embracing the world as a human with rights, feelings, aspirations and a purpose. History records Washington as the victor.
Washington, a great orator, writer and respected advisor to Presidents, founded a university and became one of the most influential Black intellectuals of the late 19th century. Instead of true transformation, Louisiana opted for cosmetic reform. It went from a state that trafficked people for their free labor in a financial and a social caste system to a state that criminalized and incarcerated people within the same caste-based structure.
With high hopes, Washington pleafully penned an open letter to the Post-Civil War, 1898 Constitutional Convention:
Since the war, no State has had such an opportunity to settle for all time the race question…as is now given to Louisiana…Will your Convention set an example to the world…?…It requires little… statesmanship to repress, to crush out, to retard the hopes and aspirations of a people, but the highest and most profound statesmanship is shown in…stimulating a people so that every fibre in the body, mind and soul shall be made to contribute…to the usefulness and nobility of the State.
His sagacious words met resistant ears. In reflection on their accomplishments, the Convention of all white males haughtily expressed: “Our mission was…to establish the supremacy of the white race…to the extent to which it could be legally and constitutionally done.…”
Non-unanimous verdicts, used in non-capital, felony cases, made its way to the Constitution of 1898. They allow convictions on a vote of as few as ten jurors. Besides Louisiana and Oregon—the only free state admitted to the union with an exclusionary clause prohibiting African Americans from residing or owning property there and once an embracing home to the Ku Klux Klan—all other states have a unanimous jury system, requiring all twelve jurors to vote in favor of a conviction in these types of criminal cases.
In 1803, when Louisiana became a territory, unanimous verdicts were required. The change from unanimity was to: (1) obtain quick convictions that would funnel people into Louisiana’s newly-created convict leasing system (as a replacement for free slave labor); and, (2) ensure Black jurors would not block convictions of other African Americans.
This Jim Crow Era law was revisited during the 1973 Constitutional Convention. A change from nine to ten of twelve was made. “Efficiency” was cited as justification for maintaining the system.
In the 1972 case of Apodaca v. Oregon, the United States Supreme Court endorsed this system. Citing Apodaca, Louisiana courts won’t consider challenges, despite over forty-five years of credible research establishing that unanimous verdicts are more reliable and more thorough.
There’s evidence that non-unanimous juries contribute to wrongful convictions, mass incarceration and the marginalization of women and minorities. This law causes different Sixth Amendment standards between federal courts (which require unanimous verdicts in criminal cases), the other forty-eight state, criminal courts (which require unanimous verdicts) and the Louisiana and Oregon state courts. The impact is tantamount to a form of gerrymandering in that it dilutes a voting block within the jury.
The law allows a prosecutor to circumvent jury discrimination rules preventing race from being justification not to seat a juror by simply silencing the voice of Black seated jurors after-the-fact. It shows flagrant disregard for the American Bar Association’s position that unanimous juries should be used in all state and federal criminal courts. The law also promotes oppression and discrimination and undermines public trust in the Government.
Courts are not the sole solution. The legislature could initiate or endorse a change in the law, which will ultimately have to be removed from the state constitution.
Racism, oppression and discimination are sustained not only by humans, but also by laws, policies, and systems. Efforts to address one, but not all will produce outcomes instead of changes. Emancipation was not just about physical freedom. The Civil Rights Movement was not just about physical presence. The struggle has always been about social, legal and political equality. The 1898 Convention officials knew the consequence of denying these things. They observed:
Whatever is unjust carries in itself the seeds of defeat and decay. Justice is irrepressible. No matter how you may trample it…its voice is never silent. It clamors…with a force that is irresistible until at last its voice will be heard and the structure whose foundations rest upon its violation will crumble into ruin….
The Sixth Amendment assures an impartial jury and the Framers envisioned that to be a unanimous vote of twelve. It is our collective duty, “with a force that is irresistible, to crumble into ruin this unjust system.” Washington did what he could. Will you?
By Angela A. Allen-Bell
Angela A. Allen-Bell is an associate professor of legal writing and analysis and B.K. Agnihotri Endowed Professor at Southern University Law Center. Follow her @AngelaAllenBell
Feature image from http://www.courts.oregon.gov/courts/lincoln/jury/Pages/default.aspx