On Monday, February 3, 2020, Southern University Law Center professor Angela Allen-Bell will give a presentation entitled “When Law & Injustice Become Bedfellows: Justice Becomes the Business of the People” during SUNO’s Charles Frye Memorial Lecture Series from 11 a.m.- 2 p.m. at the Millie M. Charles School of Social Work. Allen-Bell will discuss the history of Louisiana’s criminal justice system in an effort to work toward needed criminal justice reforms. The public is invited to attend.Read more »
Like the rest of the nation, Louisiana voters will head to the polls November 6 for mid-term elections. But, here, voters will also decide on six constitutional amendments including one that has garnered national attention from criminal justice activists, entertainers, and legal organizations. It is the question of if jury convictions be unanimous?
Clearly one of the most discussed political and legal policies of the recent legislature, the non-unanimous juries were proven to vestiges of Jim Crow policies that unfairly lead to mass incarceration and voter suppression statewide. Originally a senate bill authored by Senator. J.P. Morrell (D-New Orleans), the law goes to vote in November. Voters will decide the fate of a new law and change in the constitution to require juries in felony cases to reach a unanimous verdict. Right now, only 10 of 12 jurors are needed, even on some murder cases.
“We are sending people to prison (for felonies) routinely without the unanimous vote of 12,” law professor Angela Allen-Bell told Eric Hatfield and Perry Daniels, hosts of Louisiana All American Sports Show on WYBR 96.9FM. “This is historic. This is important. This is going to be the greatest piece of criminal justice legislature to impact any of us in our lives because of the far-reaching effects of this.” She started public discussion on the topic in 2015 at Southern University Law Center. Allen-Bell, a legal analyst, said the damage of the unjust, non-unanimous jury law is extensive.
In two months, voters will also decide if convicted felons can be allowed to run for office, if certain funds can be used for traffic control, and if increased property taxes be phased in. Here are the amendments as they will appear at the polls:
Proposed Amendment No. 1 : Act 719 of the 2018 Regular Session of the Louisiana Legislature proposing to add Article I, Section 10.1 to the Louisiana Constitution.
“Do you support an amendment to prohibit a convicted felon from seeking or holding public office or appointment within five years of completion of his sentence unless he is pardoned?”
Proposed Amendment No. 2: Act 722 of the 2018 Regular Session of the Louisiana Legislature proposing to amend Article I, Section 17(A) of the Louisiana Constitution.
“Do you support an amendment to require a unanimous jury verdict in all noncapital felony cases for offenses that are committed on or after January 1, 2019?”
Proposed Amendment No. 3: Act 717 of the 2018 Regular Session of the Louisiana Legislature proposing to amend Article VII, Section 14(B) of the Louisiana Constitution.
“Do you support an amendment to permit, pursuant to written agreement, the donation of the use of public equipment and personnel by a political subdivision upon request to another political subdivision for an activity or function which the requesting political subdivision is authorized to exercise?”
Proposed Amendment No. 4: Act 720 of the 2018 Regular Session of the Louisiana Legislature proposing to amend Article VII, Section 27(B)(1) of the Louisiana Constitution.
“Do you support an amendment to remove authority to appropriate or dedicate monies in the Transportation Trust Fund to state police for traffic control purposes?”
Proposed Amendment No. 5: Act 721 of the 2018 Regular Session of the Louisiana Legislature proposing to add Article VII, Sections 18(G)(6), 21(K)(4) and (M)(4) of the Louisiana Constitution.
“Do you support an amendment to extend eligibility for the following special property tax treatments to property in trust: the special assessment level for property tax valuation, the property tax exemption for property of a disabled veteran, and the property tax exemption for the surviving spouse of a person who died while performing their duties as a first responder, active duty member of the military, or law enforcement or fire protection officer?”
Proposed Amendment No. 6: Act 718 of the 2018 Regular Session of the Louisiana Legislature proposing to amend Article VII, Section 18(A) and (F) of the Louisiana Constitution.
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“Do you support an amendment that will require that any reappraisal of the value of residential property by more than 50%, resulting in a corresponding increase in property taxes, be phased-in over the course of four years during which time no additional reappraisal can occur and that the decrease in the total ad valorem tax collected as a result of the phase-in of assessed valuation be absorbed by the taxing authority and not allocated to the other taxpayers?”
In the Issue,State admin
While Louisiana fought the Civil War, Booker T. Washington was a child slave. After the Civil War, both he and the state of Louisiana had a new course to charter. Louisiana, faced with the emancipation of approximately 331,000 slaves, had to confront issues including voting rights, education and criminal justice. Washington was tasked with shedding his identity as an object—a piece of property—and embracing the world as a human with rights, feelings, aspirations and a purpose. History records Washington as the victor.
Washington, a great orator, writer and respected advisor to Presidents, founded a university and became one of the most influential Black intellectuals of the late 19th century. Instead of true transformation, Louisiana opted for cosmetic reform. It went from a state that trafficked people for their free labor in a financial and a social caste system to a state that criminalized and incarcerated people within the same caste-based structure.
With high hopes, Washington pleafully penned an open letter to the Post-Civil War, 1898 Constitutional Convention:
Since the war, no State has had such an opportunity to settle for all time the race question…as is now given to Louisiana…Will your Convention set an example to the world…?…It requires little… statesmanship to repress, to crush out, to retard the hopes and aspirations of a people, but the highest and most profound statesmanship is shown in…stimulating a people so that every fibre in the body, mind and soul shall be made to contribute…to the usefulness and nobility of the State.
His sagacious words met resistant ears. In reflection on their accomplishments, the Convention of all white males haughtily expressed: “Our mission was…to establish the supremacy of the white race…to the extent to which it could be legally and constitutionally done.…”
Non-unanimous verdicts, used in non-capital, felony cases, made its way to the Constitution of 1898. They allow convictions on a vote of as few as ten jurors. Besides Louisiana and Oregon—the only free state admitted to the union with an exclusionary clause prohibiting African Americans from residing or owning property there and once an embracing home to the Ku Klux Klan—all other states have a unanimous jury system, requiring all twelve jurors to vote in favor of a conviction in these types of criminal cases.
In 1803, when Louisiana became a territory, unanimous verdicts were required. The change from unanimity was to: (1) obtain quick convictions that would funnel people into Louisiana’s newly-created convict leasing system (as a replacement for free slave labor); and, (2) ensure Black jurors would not block convictions of other African Americans.
This Jim Crow Era law was revisited during the 1973 Constitutional Convention. A change from nine to ten of twelve was made. “Efficiency” was cited as justification for maintaining the system.
In the 1972 case of Apodaca v. Oregon, the United States Supreme Court endorsed this system. Citing Apodaca, Louisiana courts won’t consider challenges, despite over forty-five years of credible research establishing that unanimous verdicts are more reliable and more thorough.
There’s evidence that non-unanimous juries contribute to wrongful convictions, mass incarceration and the marginalization of women and minorities. This law causes different Sixth Amendment standards between federal courts (which require unanimous verdicts in criminal cases), the other forty-eight state, criminal courts (which require unanimous verdicts) and the Louisiana and Oregon state courts. The impact is tantamount to a form of gerrymandering in that it dilutes a voting block within the jury.
The law allows a prosecutor to circumvent jury discrimination rules preventing race from being justification not to seat a juror by simply silencing the voice of Black seated jurors after-the-fact. It shows flagrant disregard for the American Bar Association’s position that unanimous juries should be used in all state and federal criminal courts. The law also promotes oppression and discrimination and undermines public trust in the Government.
Courts are not the sole solution. The legislature could initiate or endorse a change in the law, which will ultimately have to be removed from the state constitution.
Racism, oppression and discimination are sustained not only by humans, but also by laws, policies, and systems. Efforts to address one, but not all will produce outcomes instead of changes. Emancipation was not just about physical freedom. The Civil Rights Movement was not just about physical presence. The struggle has always been about social, legal and political equality. The 1898 Convention officials knew the consequence of denying these things. They observed:
Whatever is unjust carries in itself the seeds of defeat and decay. Justice is irrepressible. No matter how you may trample it…its voice is never silent. It clamors…with a force that is irresistible until at last its voice will be heard and the structure whose foundations rest upon its violation will crumble into ruin….
The Sixth Amendment assures an impartial jury and the Framers envisioned that to be a unanimous vote of twelve. It is our collective duty, “with a force that is irresistible, to crumble into ruin this unjust system.” Washington did what he could. Will you?
By Angela A. Allen-Bell
Angela A. Allen-Bell is an associate professor of legal writing and analysis and B.K. Agnihotri Endowed Professor at Southern University Law Center. Follow her @AngelaAllenBell
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