BATON ROUGE, La. (BRPROUD) — Next week the Louisiana Supreme Court will decide if the ban on non-unanimous juries should apply to cases in the past. Before the arguments begin, one lawmaker is pushing a bill he believes will help those convicted, but not everyone agrees it is the best way.

This is the second year in a row that legislation has been brought to the Louisiana Legislature in hopes to provide conviction relief for those convicted by so-called “Jim Crow Juries.”

A non-unanimous jury conviction is when someone is found guilty of a crime with only 10 of 12 jurors in agreement. They were ruled unconstitutional by the U.S. Supreme Court in 2020 due to the creation of the practice being rooted in racism. 

The first bill to be heard this session tries to address the issue and made it out of committee but not everyone is happy. HB744 by Rep. Randal Gaines would create a committee to oversee the 1,500 cases to see if the person should be allowed a chance at parole.

“It’s not perfect but it does give the best solution that we feel in the challenging circumstances,” Rep. Gaines said.

After being amended, the committee will be made up of three retired appellate court judges or Supreme Court justices, a retired district attorney, and one retired public defender. The committee would meet once a month to decide if there was a “miscarriage of justice.” The bill outlines how the committee will determine that as:

  • Whether the non-unanimity was the result of juror votes to acquit.
  • Whether a juror voted to convict for a responsive verdict when the petitioner was convicted of the offense charged.
  • Whether a juror voted to convict for the offense charged when the petitioner was convicted of a responsive verdict.
  • The overall strength of the state’s case.
  • The length of deliberations.
  • The nature of the offense.
  • The assistance of counsel for the applicant at trial and on appeal.
  • Any indicia of racial animus in the prosecution of the petitioner’s case.

Rep. Gaines said he worked with the District Attorney’s Association and the governor’s office to create this plan to address some of the issues that were brought up last year during committee hearings.

Those who are in favor of retroactivity said people should get a new trial, not just parole. They also said the burden to prove some of the things the committee is looking for could be difficult for inmates.

“This is the wrong way of trying to do the right thing. This is not going to make people whole. This is not like juvenile life where we’re trying to resentence people. This is about a conviction that was found to be unconstitutional,” said Norris Henderson, executive director of VOTE.

VOTE and others who have supported legislation regarding retroactivity in the past put in red cards against the bill. Henderson said the conviction should be thrown out automatically due to it being unconstitutional and a new trial granted.

Promise of Justice Institute, which represents the supermajority of the 1,500 folks that are identified as currently serving time for non-unanimous verdict, released this statement following the passage of the bill in committee:

“Today, the House Judiciary Committee voted to move forward a non-unanimous jury verdict remedy that would provide no actual remedy. The only real remedy for hundreds still incarcerated without verdicts is retroactivity and requiring the State to actually prove guilty beyond a reasonable doubt,” said Hardell Ward, managing attorney of the Jim Crow Jury Project at Promise of Justice Initiative. “To ask those who have suffered a Jim Crow Jury verdict to, without counsel, resources or adequate time, present to an unelected body some other miscarriage of justice to receive parole further maintains and promotes the ideals of the 1898 Convention which brought Jim Crow to Louisiana. The guarantees of our laws cannot be allowed to be stolen away and this injustice can only be cured by granting the men and women in prison their right to a fair trial.”

“None of these courts have ruled [patent error] based on a non-unanimous jury. When the professor wrote the book about Jim Crow’s last stand, I don’t think Jim Crow is dead yet he’s still standing,” Henderson said.

Last year the bill was shelved to wait for a court decision – but now some fear the opposite will happen and this bill could let the court punt to the legislature to make a decision.

“For them to delay their decision or their decision being influenced by that,” Rep. Edmond Jordan said.

The bill advanced with the new amendments from the District Attorney Association attached.

A bill by Rep. Jason Hughes has yet to be heard in committee this session in anticipation of the court hearing next week. His bill, HB271, would provide retroactivity to the cases determined by a non-unanimous jury.