By The New York Times Editorial Board
How many jurors does it take to deliver a guilty verdict?
In 48 states, the answer is simple: All of them. Juries in felony cases must agree unanimously in order to convict. The rule is the same in federal trials, and for good reason. It reflects the centuries-old understanding that jury unanimity is central to a fair justice system, that it “preserves the rights of mankind,” as John Adams said in 1786.
Yet two states, Oregon and Louisiana, continue to hold out against this fundamental principle. Both permit juries in felony trials to return guilty verdicts even if one or two jurors vote to acquit. Louisiana goes further, allowing split verdicts in murder cases, where convictions can result in sentences of life without parole.
The few remaining defenders of this practice claim that it’s necessary for the “efficient” functioning of the legal system. Here’s a hint: When 48 states and the federal government disagree with you, it’s worth considering the possibility that you might be wrong.
The good news is that Louisiana lawmakers are close to doing that. Last month the State Senate passed a bill to amend the state’s Constitution to require jury unanimity in all felony cases with 12-person juries. (Six-person juries, which try lower-level crimes, are already required to be unanimous.) The House is scheduled to vote on the bill Monday. Lawmakers should approve the measure and send it to the voters for ratification in November. If they fail, they will leave Louisiana trapped under a 19th-century relic that lives on mainly because it makes prosecutors’ jobs easier.
The rule was born of explicit racism, a recent series by The New Orleans Advocate showed. When the state’s constitutional convention adopted it in 1898, Louisiana’s white power structure was intent on preventing blacks from having any influence over the administration of justice, and also on making it easier to convict blacks, who could then be forced into free prison labor.
Deploying non-unanimous juries to these ends was no secret. One convention delegate said that the juries, which could convict with as few as nine guilty votes, would help “to establish the supremacy of the white race in this state to the extent to which it could be legally and constitutionally done.”
The rule’s modern defenders argue that it was cleansed of its racist origins in 1973, when it was readopted and amended to require verdicts of at least 10 to 2. Either way, split juries today perpetuate the racial discrimination that exists at every stage of the jury process. The Advocate found that across Louisiana, blacks are less likely than whites to be included in the pools from which jurors are chosen, and they are disproportionately struck by prosecutors who believe, not without some evidence, that they will be more likely to vote for acquittal. If they beat those odds and end up on a jury, the split-jury rule makes it more likely that their votes won’t count.
These built-in biases lead to racial disparities in prosecutions, convictions and incarceration. Of nearly 1,000 trials The Advocate reviewed over a six-year period, 40 percent resulted in split guilty verdicts, and black defendants were 30 percent more likely than whites to be convicted by a split verdict.
Race aside, the rule is just bad policy. Research shows that non-unanimous juries are actually less careful in their deliberations, which increases the risk of wrongful convictions — a major problem in Louisiana.
Split jury verdicts may also add to the size of Louisiana’s prison population, which is already the nation’s largest per capita. Louisiana juries convict 81 percent of the time, as compared with 71 percent in other parts of the country, according to a 2003 survey.
As for the claim that non-unanimous juries help avoid the extra cost and time of mistrials, other states get along fine with unanimous juries. And according to The Advocate, requiring unanimous juries would lead to only 12 additional mistrials in the state per year. Even if this reform led to 112 mistrials, however, that should be the government’s problem, not the defendants’.
Some prosecutors admit that the incentives of a split jury are less than noble. As one former prosecutor told the Louisiana Senate last month, he would bring more serious charges than might have been warranted against defendants, simply to get a case in front of a 12-member jury. “It was easier for me to convict ’em with 10 out of 12 — I’m not proud of that — than it is six out of six.”
In a pair of 1972 decisions, the Supreme Court held that states are not required to insist on jury unanimity, even though the Sixth Amendment requires it for federal trials. The ruling has been challenged repeatedly in the years since, but the justices have declined to review it, most recently in October. In the absence of any court action in the near future, Louisiana and Oregon need to take an affirmative step to join the rest of the country. Majority rule is good when it comes to the democratic process, but it’s not enough when someone’s constitutional rights and liberty are at stake.