Louisiana currently allows a non-unanimous jury decision for felony convictions. That law is up for reconsideration this election day with a ballot initiative, which, if it passes, would change the state constitution to require unanimous juries.
But how did we get here? How did Louisiana become one of only two states in the nation that allows convictions by non-unanimous juries?
Ed Tarpley has been practicing law in Louisiana for nearly 40 years - six spent as District Attorney in Grant Parish. But it wasn't until recently that he learned how Louisiana adopted a jury rule unlike any other in the country.
"The overwhelming majority of lawyers in Louisiana were unaware of the origins of the law," Tarpley says.
To get to the beginning, you have to go back to the Louisiana Purchase in 1803 - when Louisiana juries were required to deliver a unanimous verdict.
"As soon as Louisiana became part of the United States the laws of the United States applied - specifically the criminal laws of the country," Tarpley says. "So we had unanimous juries from the early days of our state."
Then came the Civil War - and the Reconstruction period that followed in 1865. As Southern states worked to rebuild their governments to include newly freed slaves, white southern Democrats - known as “Redeemers” - were working to do the opposite.
Thomas Aiello is an Associate Professor of History and African American studies at Valdosta State University in Georgia, and author of Jim Crow’s Last Stand: Non-unanimous Criminal Jury Verdicts in Louisiana. "After Reconstruction was over, the white population in the state tried to reimpose some kind of version of white control over the system which they felt they had lost ever since the loss of the Civil War," Aiello says.
One of the ways Redeemers regained control was through a system known as 'convict leasing.' No longer able to keep slaves under the 13th Amendment, the convict lease system allowed the state to rent out its prisoners to people or companies who needed labor.
"The goal of course was to create enough free labor that the railroads, plantation owners and other groups like that could get a version of their free labor back," says Aiello. "But the only way to make that work is to make sure that you have enough convicts."
Out of that system came Louisiana’s non-unanimous jury rule.
"One of the ways to make sure that you can get more convictions is to lower the jury requirement," says Aiello. So in 1880, the state legislature said juries no longer needed to reach a unanimous decision.
The new law required only 9 of 12 jurors to convict someone of a crime. It eventually became part of Louisiana’s Constitution in 1898 - during a convention where the stated purpose was "to establish the supremacy of the white race in the state." Since then, says Tarpley, the law has remained in the state’s constitution.
"All of this took place in the post-Reconstruction era and it was one of the earliest examples of the Jim Crow laws that as the years went by begin to be instituted throughout the South," Tarpley says.
After facing a legal challenge, Louisiana’s law was backed by a Supreme Court ruling in 1972 that said non-unanimous juries did not violate the constitutional right to due process.
In 1973, Louisiana’s current constitution was drafted with a slight change to the jury rule - now, 10 of 12 jurors had to agree. That change put Louisiana in line with Oregon - the only other state in America with a non-unanimous jury law. But Tarpley says the system in Louisiana diminishes our constitutional rights - so he’s been working to repeal the law.
"We have a system which means that every vote on the jury is not equally counted," Tarpley says. "Once the jury gets to 10 votes, well then whoever the dissenting jurors are, their voices are simply not considered."
The purpose of the jury, Tarpley says, is to ensure the state has proven its case beyond a reasonable doubt. "And in Louisiana, if we have one or two people on the jury that still have doubt, then they have not done that," he says.
This year, the Louisiana legislature agreed with Tarpley - and on November 6th, voters will decide whether non-unanimous verdicts should continue to be allowed in the state.
