Supreme Court deciding on past harm of ‘Jim Crow juries’

The first hurdle in the road to repairing the harm caused by nonunanimous jury decisions — also known as “Jim Crow juries” — was cleared in April of this year when the U.S. Supreme Court found the use of those jury decisions to be unconstitutional. Almost two weeks ago, the court heard arguments in another case, which will determine whether that April decision should apply retroactively.

“On a fundamental level, it would be atrocious if we continue to acknowledge that Jim Crow laws exist and yet we don't seek to relieve the unfair burden that it has on people today,” Jamila Johnson, a managing attorney for the Jim Crow Juries Project at The Promise of Justice Initiative, told NBC News.

Out of 48 states and federal courts, only two states have upheld these split jury decisions: Louisiana and Oregon. Allowing the use of these kinds of juries was rooted in racism in both states, and continues to disproportionately impact Black jurors and defendants.

Thomas Frampton is an associate law professor at the University of Virginia School of Law who previously worked as a public defender in Louisiana, and wrote “The Jim Crow Jury” for the Vanderbilt Law Review in 2018. He took some time to discuss some of the history behind these juries, and the resulting consequences of non-unanimous verdicts. (This email interview has been edited for length and clarity. ).

Q:

In 2018, Louisiana voters struck down non-unanimous, split jury decisions in the state. And in April of this year, the Supreme Court ruled that non-unanimous jury convictions were unconstitutional, effectively banning the use of these jury convictions in Louisiana and Oregon. Can you help us understand some of the history of nonunanimous juries, or “Jim Crow juries”?

A:

Up until 1898, Louisiana followed the same rule most people are probably accustomed to: a guilty verdict had to be the unanimous view of the jurors. But when juries became integrated after the Civil War, the rule of unanimity made it harder to railroad Black defendants.

Reasserting White supremacy after the end of Reconstruction was a multifacted project, involving mass disenfranchisement at the polling place and segregation in public accommodations. One part of that history that we've largely forgotten was that there was also a major push to keep Black jurors from serving, too, and that was something that happened across the country in the late nineteenth century. But Black citizens fought back against “the Jim Crow jury”: They recognized that ending racism in the administration of criminal justice was critical to advancing the broader movement for equality. In Louisiana, Black jurors continued to serve — albeit in dwindling numbers — all the way to the end of the 19th century.

Q:

In April of this year, the case that the Supreme Court ruled on was “Ramos v. Louisiana,” in which a split jury decision was argued to be unconstitutional under the Sixth Amendment (in Ramos's case, 10 out of 12 jurors found the defendant guilty of second-degree murder and he was sentenced to life in prison). The Supreme Court agreed that the conviction was unconstitutional, but did not apply the decision retroactively. Another case heard earlier this month (“Edwards v. Vannoy”) will decide whether the Ramos ruling should be applied retroactively. How are these split jury decisions unjust, exactly? Why is a majority decision insufficient when compared to a unanimous decision?

A:

Right now, in Louisiana and Oregon, there are over a thousand people imprisoned based on non-unanimous verdicts, cases in which one or two jurors weren't persuaded that the defendant was actually guilty. There have been dozens of people exonerated in recent years in Louisiana in recent years who were convicted by non-unanimous verdicts, proving that those dissenting jurors sometimes have it right. If one or two jurors remain unpersuaded, can we really say the defendant is guilty “beyond a reasonable doubt”?

The system is also disturbing when we look at it from the perspective of the individual juror. What does it say to jurors when we conscript them into this form of civic service, but then tell them that their voice doesn't actually matter?

Q:

Can you talk a bit about how race factors into jury decisions, and how the legal system is currently allowing racial bias in juries? And the kinds of measures you'd hope to see implemented to counter this kind of racial bias in the jury system?

A:

There's one feature of nonunanimous verdicts that is critically important to understand: They still operate today precisely the way they were designed to operate 120 years ago, disproportionately silencing the voice of Black jurors and disproportionately disadvantaging Black defendants.

During jury selection, for example, each side gets to challenge potential jurors “for cause” and through peremptory strikes. Study after study shows that prosecutors overwhelming target non-white jurors, and while the intentional use of race is illegal, we don't have a good legal mechanism for regulating this form of exclusion.

In September 2020, Gov. (Gavin) Newsom signed two landmark bills aimed at tackling these problems. The laws aim to make it much harder to engage in discriminatory jury selection practices and diversify the pool of potential jurors. Everyone who cares about these issues will be watching California in the coming years to see if they make a difference.