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A vote for would
Require unanimous jury decisions for verdicts in noncapital felony cases for offenses committed after 2018.
Louisiana is one of two states that allow for the conviction or acquittal of a felony defendant without a unanimous decision. This provision was instituted at the state’s 1898 Constitutional Convention where 9 out of 12 jury votes were required to reach a verdict. This provision was revised in the 1974 Constitution, as the standard shifted to 10 out of 12. This specific rule applies to all felony trials on charges in which the required punishment is hard labor. Capital murder trials as well as six-member juries that consider lesser felony charges require unanimous votes to reach a verdict.
The proposed amendment would require all 12 members of a jury to concur to render a verdict in cases where the punishment would be confinement at hard labor. The unanimous vote requirement includes verdicts to convict as well as to acquit. Lesser felony offenses still will require all members of a six-member jury to convict. This change would not be retroactive as it would apply to offenses committed on or after January 1, 2019.
President John Adams once stated, “It is the unanimity of the jury that preserves the rights of mankind.” While this was the attitude of our founding fathers, it is not reflected in Louisiana’s fundamental law. The federal court system and all other states but Oregon require unanimous verdicts in felony cases. The reason appears rooted in the state’s racist past. The Official Journal of the 1898 Constitutional Convention states, “Our mission was, in the first place, to establish the supremacy of the white race in this State to the extent to which it could be legally and constitutionally done.” Recent research suggests that even today the law has a disparate impact on minorities. A vote in favor of this amendment would improve Louisiana’s image and signal to the rest of the nation and the world that the state is continually striving to become a more modern society with stronger and fairer values and culture.
Furthermore, the current law encourages gamesmanship by prosecutors. A prosecutor might over-charge a defendant in order to qualify for a 12-person jury needing 10 votes, and thus perhaps an easier conviction, as opposed to a six-person jury in which unanimity is required. This distortion can make it easier to convict someone of a greater crime than a lesser one.
The racial motive behind the origin of this law is something we can all agree that Louisiana got wrong. While there is no way to validate the racial component of the current law, we should recognize the ways that this law has been beneficial. Having a lower verdict threshold reduces the likelihood of a hung jury. In a unanimous system even if 11 jurors think one way, a single juror can create a mistrial. This type of inefficiency and ineffectiveness is exactly what delegates had in mind when this law was revisited in Louisiana’s 1973-74 constitutional convention. The current law is more efficient as it prevents hung juries and saves time and taxpayer money on potential retrials.
The non-unanimous jury law has withstood the test of the U.S. Supreme Court. In 1972 the Supreme Court heard Johnson v Louisiana as well as Apodaca v Oregon. In these cases the Supreme Court justices noted they did not believe three dissenting votes assumed an inaccurate decision and pointed out that nine jurors could satisfy the burden of “beyond reasonable doubt.” While unanimous juries are standard in the United States, that is not the practice in many other developed nations. For example, England, Scotland, Ireland, Brazil, Belgium, and Denmark all refrain from requiring unanimous juries.
Since the amendment would not apply to verdicts before 2019, there could be an issue of fairness. While future convictions could not happen unless there was a unanimous verdict, there would be no relief for those already convicted.
Legal Citation: Act 722 (Senate Bill 243 by Sen. Morrell) of the 2018 Regular Session amending Article I, Section 17 (A).
The Public Affairs Research Council of Louisiana (PAR) is an independent voice, offering solutions to public issues in Louisiana through accurate, objective research and focusing public attention on those solutions. PAR is a private, nonprofit research organization founded in 1950 and supported by membership contributions, foundation and corporate grants and special events.
For more information, media interviews or public presentation requests regarding this constitutional amendment guide, please contact PAR President Robert Travis Scott at RobertScott@parlouisiana.org.