Race and Law Enforcement beyond Policing: The Criminal Jury System in Louisiana

Thomas Aiello is the author of Jim Crow’s Last Stand: Nonunanimous Criminal Jury Verdicts in Louisiana. He joins us on the blog today to talk about the history of racism in Louisiana’s criminal justice system.

The predominant black fear and resentment of law enforcement is justified by every historical measure. The structural bias in policing, for example, has extended back to the first American police force established in 1838 in Boston and has only continued, pushed today by training standards, private prisons, and overt militarization among departments across the country. Demonstrating the historical bigotry inherent in systems of policing, however, is different than criticizing individual police officers, many of whom do their job with fairness and diligence, and most of whom believe that they are public servants. There are, for example, demonstrable historical bigotries inherent in the professoriate—my particular profession—and yet the bulk of those whom I respect most are members of the academy. The confusion in conflating such criticisms, combined with the historical bigotry that was the subject of such analysis in the first place, has left Baton Rouge lesser for the endeavor, publicly strewn with the bodies of Alton Sterling and several police officers and sheriff’s deputies.

Just as law enforcement officers have to continue to work in remarkably harsh and dangerous circumstances, and just as black citizens have to continue to explain to the privileged majority that black lives matter, historians, too, have to continue working to understand the context that creates such tragedies. One of the most racially problematic elements of Louisiana’s law enforcement, for example, is its criminal trial procedure that allows juries to decide criminal cases with nonunamious verdicts, another system that disproportionately affects minority defendants.

The principle of nonunanimous jury verdicts in non-capital criminal cases was not a unique Louisiana holdover from the Napoleonic Code. It was not a legacy handed down from France or Spain or the Holy See, as were so many of Louisiana’s other governmental idiosyncrasies. It was a conservative measure fired in the crucible of the Bourbon restoration following Reconstruction, when white Democrats sought to return their state to some sense of normalcy following federal occupation. The law validating nonunanimous jury verdicts first passed in 1880, and was codified in the Louisiana state constitution of 1898. It was the era of the Redeemers. It was the era of Jim Crow. And the same leaders re-imposing white southern rule and formulating the convict lease system fundamentally changed a code that had been in place since American transfer following the Louisiana Purchase and used it to create more convicts.

Following the end of Reconstruction, the state legislature ordered another in a long line of Louisiana constitutions. “In all criminal prosecutions the accused shall enjoy the right to a speedy public trial by an impartial jury,” noted the constitution of 1879, and that jury had to be unanimous—as it always had. But the real force for change in the new constitution was the requirement that jury trial mandates be subject to the legislature’s discretion. There was no specific constitutional provision authorizing the state senate to extend the possibility of binding nonunanimous jury verdicts to criminal cases. But that is precisely what it would do.

On April 10, 1880, the Senate modified Article 527 of the 1870 Code of Practice. “If it appears that nine or more of the jurors have agreed to the verdict,” the new law stated, “the same shall be recorded.” And with that, the burden on criminal defendants was made inexorably harder. Criminal juries no longer needed unanimity to convict. The state would further formalize its new requirements in Article 116 of the constitution of 1898: “Cases in which the punishment is necessarily at hard labor [shall be tried] by a jury of twelve, nine of whom concurring may render a verdict; cases in which the punishment may be capital, by a jury of twelve, all of whom must concur to render a verdict.” The constitutional convention of 1898 was tinged with racial overtones. It was the session that codified Jim Crow and black voting restrictions. Convention president E.B. Kruttscchnitt opened the proceedings by reminding delegates that “this convention has been called together by the people of the State to eliminate from the electorate the mass of corrupt and illiterate voters who have during the last quarter of a century degraded a politics.” In closing the convention, he praised delegates for perpetuating “the supremacy of the Anglo-Saxon race in Louisiana.”

Jim Crow's Last Stand

To help perpetuate that supremacy, legislators needed to combine its attempts at segregation and disfranchisement with a systematic reinstitution of a version of slavery. Louisiana’s convict lease system actually began in the antebellum era, when the state first leased prisoner work to private companies in 1844. That work was originally done inside the prison, turning the penitentiary into a de facto factory, but during Reconstruction the state began shipping prisoners out to work on construction and repair projects. Most of them went to a contractor named S.L. James, who signed a twenty-one year contract with the state in 1870, and renewed it in 1890. The state made a profit, James got cheap labor that he could treat as brutally as he liked. In 1881, the year following the original nonunanimous jury law, fourteen percent of leased convicts died. The next year, more than twenty percent died. And more than three-fourths of Louisiana’s leased convicts after 1870 were black. In light of the racial motivation of such punishments and the overwhelming need of the state for more prisoners to lease to the growing political machine known as the “James Gang,” the state’s change to nonunanimous criminal jury verdicts became almost a fait accompli.

The Supreme Court would narrowly validate Louisiana’s law in Johnson v. Louisiana (1972), tried in conjunction with a similar Oregon appeal, and the outcome validated the legality of non-unanimous criminal verdicts. But it didn’t end the controversy about the approximate justice they provided for criminal defendants. In the century prior to Johnson, appellants had argued that 9-3 verdicts made it that much easier to convict. The state countered that they also made it that much easier to acquit. Appellants argued that 9-3 verdicts in non-capital criminal cases overly complicated a system that often tried defendants on multiple counts, including misdemeanors and capital offenses. The state countered that they reduced the number of hung juries, thereby streamlining the system and saving the state money. The Supreme Court was less concerned with such arguments, instead arguing that consistency provided fairness, and fairness was the fundamental bedrock of due process.

That fairness, however, has been questionable and continuously questioned. The original 9-3 verdicts were later modified to requirements for 10-2 decisions, but that did little to make the system more equitable. The Louisiana jury law, forged in post-Reconstruction politics, has remained one of the last holdovers from the early Jim Crow era in Louisiana. The original impetus of legislators to make convictions easier for a state hungry for more convicts withstood constant challenges throughout the following century. Its constitutionality was confirmed in Johnson not because a racist Court sought to reinstitute one of the final vestiges of Jim Crow, but because it ruled that equal protection could be granted by nine of twelve jurors. Still, as the twentieth century became the twenty-first, it was clear that race still played a role in the formula created by the nonunanimous jury standard. It didn’t have the racist odor of poll taxes or separate train cars, and so it remained, with effects that reached far beyond the bounds of race. It still remains. But the debate about the debits and credits of nonunanimous criminal jury verdicts and the assumption of their inherent place in the system by Louisiana legislators and prosecutors has fundamentally shaped the state’s criminal justice policy, for better and for worse. Mostly, however, for worse.

Like policing, the history of the criminal jury system in Louisiana is structurally biased and disproportionately hurts the poor and minority groups. Like police officers, many of the lawyers, judges, and court officials who are part of that system view their work as public service and devote their lives to selflessly participate in that effort. Most don’t know the role played by S.L. James or E.B. Kruttscchnitt in the creation of Louisiana’s modern legal system. But that doesn’t mean they don’t play a role in perpetuating that system. Law enforcement is more than just policing. While debates about the role of policing in black lives are, despite their difficulty, ultimately necessary and beneficial, eliminating racial disparities in the system will take more than just police reform. Law enforcement is a massive enterprise that exists well beyond the scope of policing, and history tells us that, particularly in Louisiana, historical disparities based on race exist in all of its many facets.

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