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The immortal Jim Grow: It's time to overturn all split verdicts [1]
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Date: 2025-04-14
In the spring of 2020, the U.S. Supreme Court ruled 6-3, in Ramos v. Louisiana, that all jury verdicts going forward must be unanimous in order to convict someone of a felony.
The court found that unanimity is essential to the Sixth Amendment’s guarantee of the essential notion of a fair and reliable verdict. Accordingly, any defendant convicted and sentenced based on a non-unanimous verdict “has suffered a violation of a fundamental constitutional right,” wrote Justice Neil Gorsuch in the majority opinion.
The premise seems commonsense, considering that 48 states and the federal court system had always required jury unanimity for verdicts to be considered valid.
But for more than a century, Louisiana has thumbed its nose at this fundamental constitutional right, allowing guilty verdicts to stand even when as many as three people — later two people — dissented. That is, until 2018, just two years before the Ramos decision, when voters across the state overwhelmingly agreed that everyone facing time in prison deserves a fair, and unanimous, verdict. Oregon, too, convicted people by split juries for eighty-six years — until the Ramos decision.
Five years after that decision outlawed split verdicts nationwide, however, hundreds of people — convicted by split juries years before the Ramos ruling — continue to suffer the same “violation of a fundamental constitutional right.”
That is because neither the 2018 ballot measure nor the high court’s sweeping ruling applied retroactively. Dealing with that problem, the court later ruled, would be left up to the states.
But so far, Louisiana has failed to act.
The story of how Louisiana first broke away from the fair and impartial application of justice is rooted in racism, fueled by political rhetoric, and nurtured by societal indifference.
Between 1875 and the 1950s, legislatures in Southern states passed a series of “Jim Crow” laws designed to enforce racial segregation and suppress the participation of Black Americans in the democratic process. After the Supreme Court ruled in 1954 that segregation in public schools was unconstitutional, similar discriminatory laws began disappearing from state codes, leaving many onlookers to believe that the reign of Jim Crow was over.
But racism runs deep, so some Jim Crow laws — like Louisiana’s split jury law — would remain on the books for decades more. The law came about as a response to an earlier period of relative racial enlightenment in American politics, albeit a short-lived one: the post-Civil War Reconstruction years.
Ratified in 1870, the Fifteenth Amendment said that no one could be denied the right to vote “on account of race, color, or previous condition of servitude.” Ten years later, the U.S. Supreme Court ruled in Strauder v. West Virginia that the exclusion of people of color from jury service was unconstitutional. This ruling angered many Southerners, particularly in Louisiana. That year, the state legislature repealed the longstanding unanimous verdict requirement in order to guarantee the will of white jurors.
The delegates at the Louisiana Constitutional Convention of 1898 took the first steps toward cementing non-unanimous verdicts for generations of Louisianians.
Aware that the Supreme Court would strike down any policy of overt discrimination against newly enfranchised Black jurors, the delegates sculpted a “facially race-neutral” rule for the state constitution that permitted verdicts to stick when as many as three of 12 jurors dissented, theoretically helping to neutralize Black jury votes. (A Pulitzer Prize-winning analysis of split jury verdicts in Louisiana by The Advocate found that in some parishes, Black people were underrepresented on juries and were more likely to dissent from the majority opinion.)
The measure passed into the state’s foundational law.
Manipulating jury votes was important to the Jim Crow government because, simply, Louisiana’s post-Civil War prison system was shouldered by Black convicts and the more convictions that could be secured through targeted, increasingly criminalized behavior, the more levees and roads could be constructed, the more cotton and cane could be processed and the more dollars could be stuffed into state coffers and the pockets of white penal lessees and affiliated bureaucrats. At its core, the split jury was a control device aimed at re-enslaving recently freed Black citizens and using them to generate tons of revenue.
In closing the convention, New Orleans attorney and former Confederate Senator Thomas J. Semmes emphasized that the delegates’ mission had been to “establish the supremacy of the White race in this state.”
Later, delegates to the 1973 Constitutional Convention modified, but did not eliminate, the split-verdict system, requiring 10 of 12 jurors to agree to a verdict instead of the earlier nine. (At the time, the U.S. Supreme Court had recently upheld non-unanimous verdicts in the two states that allowed them.)
For more than 120 years, Louisianians accepted split juries as an integral courtroom component of their adversarial system. This component sent thousands of Louisianians to prison, many for life. State appellate courts consistently affirmed the practice, and federal courts refused to intervene.
In the wake of a massive reformist campaign, in part spurred by The Advocate’s work, Louisiana voters junked the Jim Crow law in 2018 by a nearly 2-to-1 margin in favor of unanimity in future trials. Two years later, Ramos sealed the deal. Almost.
Left out of the changes brought by the 2018 ballot initiative and the Ramos decision were about 1,500 Louisiana prisoners who had been convicted by split verdicts went through, and exhausted, the normal appeals process. The question of whether to retain their unconstitutional verdicts, as prosecutors demanded — warning of chaos in state courtrooms should they be overturned — was to be decided in a second case out of Louisiana.
Ultimately, the justices declined to retroactively apply Ramos to state prisoners. But Louisiana, the court noted, was free under its own and federal jurisprudence to apply the ban to the older cases.
The Louisiana Supreme Court got its chance in October 2022. The case, State v. Reddick, was the assault on split juries that the justices in Washington said was within the purview of the state judiciary to remedy. The court declined to take the opportunity, ruling that Ramos would not be applied retroactively. The sole dissent came from the state’s Black justice, Piper Griffin.
Absent intervention from the state Supreme Court, the possibility of any relief from Ramos was punted to the legislature.
In 2021, the legislature had an opportunity to address split juries. House Bill 346, sponsored by Democratic Rep. Randall Gaines, would have granted new trials to the affected prisoners. But that bill ultimately was killed in committee. Gaines vowed to refile his bill in the future, but the bill he “refiled” in 2022 was nothing like the original.
Gaines now favored establishing a panel of retired judges, district attorneys and a retired public defender who would review individual cases and determine whether the applicant was worthy of relief. Parole would be the best – and least likely – outcome. Gaines’ HB 1077 from 2022 was applauded by prosecutors and denounced by advocates. When those conflicts became insurmountable, Gaines withdrew the bill.
In 2023, Gaines again returned with the same bill he pulled the previous year. It failed again. Gaines, term limited from seeking reelection, pocketed another loss and left the legislature.
Since then, progressive lawmakers have filed bills in favor of new trials for affected prisoners, but the conservative legislature, emboldened by a conservative governor, supported by a conservative district attorneys association and defended by a conservative Supreme Court, has rejected retroactive application of the Ramos standard. Reform advocates continue to chisel out potential pathways to success, but the forest is thick and fraught with beasts.
Oregon, on the other hand, did not play politics with the Ramos decision. The state Supreme Court found in Jacob Keith Watkins v. Ackley (2022) that “anything less than a unanimous guilty verdict violates our sense of what is fundamentally fair in a criminal proceeding …”
The unanimous court did what Louisiana’s high court refused to do two months prior: applied the federal ban to its roughly three hundred pre-2020 state convictions.
Louisiana is now the sole outlier that embraces archaic, race-based jurisprudence.
As the Louisiana legislature prepares to convene its regular session on Monday (April 14), excising non-unanimous convictions from the penal system appears to have lost its luster. The conservative bulwark erected by Gov. Jeff Landry and protected by Republican lawmakers is a formidable barrier between fanaticism and justice that repels challengers. The district attorneys association has made clear that it will not support any bill that offers relief to people incarcerated as a result of a split jury vote. In this state, if the prosecutors won’t support it, the legislature flushes it.
Until Louisiana voters opt for a more progressive government, the number of prisoners who have labored for years beneath a conviction scheme that has been judicially branded as unconstitutional will continue to decrease as they grow old and die behind bars. This is the dissolute product of political persuasion and public indifference.
But there still may be some hope in the state legislature. This year, another legislator is taking a shot at remedying the injustice of Jim Crow jury verdicts with a bill up for debate in the upcoming legislative session.
Senate Bill 218, sponsored by New Orleans Democrat Sen. Royce Duplessis, was prefiled on April 4. The bill will make it easier for people convicted by split juries to go to court and seek release or reduced sentences.
Last year, Duplessis visited me and other incarcerated individuals at the Louisiana State Penitentiary Angola as a guest of the Promise of Justice Initiative. He addressed an assembly of prisoners on the subject of split juries and pledged his support toward burying Jim Crow policies in Louisiana once and for all. SB 218 is Duplessis keeping his pledge to those affected.
SB 218 is a great bill and if passed and signed into law would go far toward reducing the number of people incarcerated as a result of a non-unanimous verdict . The bill is fair and uncomplicated.
Its chances of enactment? I wouldn’t bet a penny. Landry railed against it as attorney general, and has consistently opposed any type of relief for incarcerated people. But even if it should succumb, SB 218 may generate much-needed public awareness of this archaic and inherently unfair practice that is yet another blight on the face of Louisiana’s criminal justice system.
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