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November 14, 2017 Articles

Why Stop at Confederate Monuments?

It is time to remove the codification of supremacy and oppression by abandoning the use of non-unanimous juries in criminal cases.

By Angela A. Allen-Bell

Recently, our collective focus has been upon the existence of Confederate-era monuments in public spaces. Some contend these monuments are divisive, offensive, and antithetical to the promise of justice and equality under the law. Others see the need to memorialize history through these public displays. As these competing views vie center stage, the collateral issue of supremacist and oppressive laws has largely gone unnoticed.  

Louisiana and Oregon are not often thought of in the same vein. However, on the issue of non-unanimous juries, they are kindred spirits. In criminal cases in these states, a unanimous vote of all twelve jurors is not needed to convict. Instead, the prosecutor needs to persuade only 83 percent of the jurors (10 of 12) for a felony conviction. All other states as well as federal courts require unanimous jury decisions in criminal cases, including Louisiana and Oregon federal courts. It is time to end the use of non-unanimous juries in criminal cases.

The historical reasons why Louisiana and Oregon parted company with the rest of the nation offend our democratic values. In 1803, when Louisiana became a territory, unanimous verdicts were required. Louisiana required unanimous verdicts from 1803 until the end of Reconstruction and the withdrawal of federal troops. Non-unanimous verdicts were introduced in Louisiana in 1880, after slavery ended. Non-unanimous verdicts made their way to the Constitution of 1898 through Article 116, where the officials announced: “We need a system better adapted to the peculiar conditions existing in our State” and then declared that their “mission was to establish the supremacy of the white race.” At the same convention, Louisiana also adopted literacy tests for voting and one of the South’s first grandfather clauses.

The change from unanimity was to (1) obtain quick convictions that would facilitate the use of free prisoner labor (vis-à-vis Louisiana’s convict-leasing system) as a replacement for the recent loss of free slave labor; and (2) ensure African-American jurors would not use their voting power to block convictions of other African Americans. An 1870 editorial in the New Orleans Daily Picayune posited that the recently emancipated were “wholly ignorant of the responsibilities of jurors, unable to discriminate between truth and falsehood in testimony, and capable only of being corrupted by bribes.”

In Oregon, the 1934 change from a unanimous to a non-unanimous jury system was aimed primarily at ethnic and religious minorities rather than racial minorities. By the 1930s, the Ku Klux Klan found widespread acceptance in Oregon and it was home to approximately 200,000 members, or nearly one in four Oregonians. Anti-immigrant and anti-Semitic sentiments peaked in 1934 when a jury failed to convict a Jewish man of murdering a Protestant man, causing a verdict of manslaughter (and not murder). The Morning Oregonian blamed the verdict on “the vast immigration into America from southern and eastern Europe, of people untrained in the jury system,” and then it accused them of making “the jury of twelve increasingly unwieldy and unsatisfactory.” The following year, Oregon swiftly passed a ballot measure to allow felony convictions based on a less than unanimous vote.

Included in the protections offered by the Sixth Amendment is an impartial jury. James Madison, who introduced the Sixth Amendment, included the requisite of unanimity for conviction in the draft he proposed. When the Framers adopted the trial guarantee, they did so with a unanimous jury in mind. In 1797, John Adams explained, “It is the unanimity of the jury that preserves the rights of mankind.”

The problems associated with non-unanimous jury laws in criminal cases are extensive. For example:

  • On their face, they suggest that a prosecutor did not prove the absence of reasonable doubt (since one or two jurors did not cast a vote to convict).
  • They create an arbitrary system whereby defendants of 48 states are afforded greater Sixth Amendment protections than defendants in Louisiana and Oregon.
  • They establish an illogical disparity in Sixth Amendment protections between state courts and federal courts, becayse all federal courts require unanimous juries.
  • They contribute to wrongful convictions.
  • They ignore guidance from the American Bar Association, which opposes the use on non-unanimous juries in criminal cases. 
  • They ignore the credible research on groupthink, which suggests that unanimous verdicts are more reliable, more careful and more thorough.
  • They undermine public trust in the judicial system.

Accordingly, state officials should act in the interests of justice and remove this written relic of supremacy and oppression and, simultaneously, reinstate the traditional meaning of the Sixth Amendment (made applicable to the states through the Fourteenth Amendment). Until this is done, we must confront the fact that oppression and supremacy are as fixed in our legal system as those monuments are into the ground where they stand; addressing one while preserving the other undermines efforts to achieve equality under the law, societal healing, and social progress. The Confederate-era monuments and these supremacist laws both speak to the larger issue of systemic oppression and that is, in all honesty, what it is that we must collectively fight to remove.

Angela A. Allen-Bell is the B.K. Agnihotri Endowed associate professor of legal analysis and writing at the Southern University Law Center in Baton Rouge, Louisiana.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

Angela A. Allen-Bell – November 14, 2017