SCOTUS Rules No Mandatory Retrials for Those Convicted by Jim Crow Juries – But There Is Still Hope

Old Jim Crow has got to go. Protesters at Safeway, Farmville, Va., August 1963” by VCU Libraries Freedom Now Project is licensed under CC BY-NC-SA 2.0

Louisiana’s incarceration system, like most incarceration systems in this country, has always been racist, prioritizing putting Black men in jail over actual justice. This is made obvious by the state’s prison population being disproportionately Black and through racist laws like the one that created Jim Crow Juries. 

Jim Crow Juries were legalized by an 1880 Louisiana law that made nonunanimous jury verdicts permissible. Through this law, the votes of black jurors could be discounted in cases against black defendants. 

Those who argue that nonunanimous juries have not been used as a tool to target Black people in Louisiana clearly have not done their research. A 2020 report by the Promise of Justice Initiative, found that 80% of over 1,500 incarcerated people who had split jury convictions in Louisiana are black. Most are serving life sentences without parole. 

For more than a century, Louisiana was one of only two states that allowed people to be convicted of a crime without the unanimous consent of a jury. Up until 2018, when Louisiana voters decided to change the state’s constitution to mandate unanimous jury verdicts. 

The big “but” of this decision was that it only applied to cases in 2019 or later, leaving over 1,500 incarcerated people in Louisiana who were convicted by divided juries without justice. 

Fast forward to 2020, when through the case Ramos vs. Louisiana the Supreme Court banned nonunanimous jury verdicts in the United States. Prior to that ruling, divided juries were still allowed in Oregon and Puerto Rico.

In the Supreme Court’s decision to end nonunanimous jury verdicts, they wrote that the practice was “a pillar of a comprehensive and brutal program of racist Jim Crow measures against African Americans, especially in voting and jury service.”

Still, there was no justice for individuals who had been tried by Jim Crow Juries in Louisiana in the past. 

Which is why Representative Randal Gaines filed Louisiana House Bill 346. The bill would set up a process in Louisiana to address past, nonunanimous jury convictions. 

Representative Gaines ended up voluntarily deferring his bill after its hearing last week since the Supreme Court was set to rule on whether they would apply their 2020 ban retroactively. 

However, on Monday they ruled 6-3 that the ban would not be applied to past cases. Justice Brett Kavanaugh delivered the opinion of the court, arguing that rulings that set new procedures were traditionally not applied retroactively. 

Justice Elena Kagan wrote in the dissent, “For the first time in many decades … those convicted under rules found not to produce fair and reliable verdicts will be left without recourse in federal courts.”

Bruce Reilly, deputy director of Voice of the Experienced, explained that 64% of Louisianans voted to abolish nonunanimous jury convictions in 2018. Because of this, he believes that residents would like to see those cases retried. “The fact that the U.S. Supreme Court is willing to let innocent people die in prison for the fear that one guilty person might get a new trial is troubling,” Reilly said.

Jamila Johnson, managing attorney for the Jim Crow Juries Project at The Promise of Justice Initiative, commented, “This ruling fails to address historic wrongs and says to the men and women in Louisiana’s prisons that even amid a national reckoning against racial injustice, too many of our institutions still bow to Jim Crow.” 

However, not all hope is lost. HB 346 will now resume its path to becoming law. 

Retired Louisiana Supreme Court Chief Justice Bernette Joshua Johnson testified at the bill’s hearing, “Let me say this: you are the legislature for the state of Louisiana. You decide on criminal procedural statutes, you decide what statutes are retroactive, and you can determine that in this instance.” 

Jamila Johnson commented that HB 346 will, “create a predictable, orderly path to justice for the more than 1,500 Louisianans who are spending the majority of their lives in prison due to verdicts that today, or at any time in 48 other states, would have resulted in new trials.”

Even Louisiana Republicans have recognized the urgency of this bill. “We as Americans have to confront things that are done that are wrong,” Republican Representative Charles Owen said. “And this is awful. This is awful.”

In New Orleans, District Attorney Jason Williams has already begun reviewing and vacating the 340 finalized, nonunanimous jury verdicts out of Orleans Parish. Earlier this year, he vacated the nonunanimous convictions of 22 defendants, almost all of whom plead to lesser charges.  

Williams said that nonunanimous jury verdicts are unfair, no matter if they were “handed down in 1898 or 2018.”

“The most recent High Court opinion is crystal clear that it is not addressing what should be done in state court or individual cases, but is solely addressing federal habeas rules of retroactivity,” Williams said in a statement. “This ruling does not change a District Attorney’s responsibility and discretion to confront the presence of unfairness in the criminal legal system.”

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