An oft-forgotten right within the U.S. legal system is the right of jury nullification. At least, this right has existed in every state other than Oregon and Louisiana, which until recently were the only states that did not require unanimous verdicts in criminal cases. Jury nullification is defined by Professor Travis Hreno as, “when a jury returns a not-guilty verdict for a defendant it believes to be guilty of the crime charged.”
Such a decision seems odd at first glance, but becomes more clear when we consider the long history of unfair sentencing in the U.S. Criminal Justice System. Jury nullification highlights that juries are not just responsible for determining guilt, they are also responsible for determining whether the court is punishing the defendant correctly.
Attorney Andrew Parmenter explains the importance of jury nullification, “Jury nullification protects the stability of democracy by preventing arbitrary or unjust application of the law, protection for minorities against majority oppression, and providing an outlet for popular disagreement with existing law.” What may first appear as an illogical use of the requirement for jury unanimity, actually proves to be a strong tool for individuals to directly engage in civic democracy.
This is why the May ruling by the U.S. Supreme Court and the recent ruling by a Calcasieu Parish judge are so important. Last year, the U.S. Supreme Court abolished split jury verdicts, 6-3, in Ramos v. Louisiana recognizing that the Sixth Amendment entitles one to a unanimous verdict. The court also recognized that split-jury verdicts were “one pillar of a comprehensive and brutal program of racist Jim Crow measures against African Americans, especially in voting and jury service.” Such a decision would potentially void an immense amount of verdicts and raised the question of whether the ruling would be applied retroactively.
In May, the U.S. Supreme Court ruled in another 6-3 decision, Edwards v. Vannoy, that their previous ruling was not a “watershed” ruling and did not apply retroactively. This is troubling. Justice Brett Kavanaugh, delivering the majority opinion, argued that retroactive application would reopen an immense amount of cases and overburden state courts. However, this pragmatic logic does not seem to reflect Ramos v. Louisiana’s central defense of civil rights. Justice Elena Kegan dissented along these terms stating that, “a verdict rendered by a divided jury is ‘no verdict at all,’” and should reframe all past jury convictions as a violation of sixth amendment rights.
Justice Kegan’s position is admirable and reflects the principled respect for civil rights that the U.S. Constitution entitles us all to. I would like to add to this defense that the failure to apply this decision retroactively denies all individuals who served on those split juries of their democratic right to jury nullification. This right, while not advertised to the public, is a central element of the democratic right to dissent and a necessity for direct democratic engagement in the legal system. This is part of what the Supreme Court means when they associate split jury rulings with racist jurisprudence, split juries allowed courts to nullify the voices of dissenting Black jurors.
The racist legacy of split jury verdicts goes back to their ratification in Louisiana, which was explicit in its anti-Black intended use. In 2018, The Advocate found that Black defendants were approximately 30% more likely than White defendants to be convicted by divided juries. This is why it’s so important that we encourage jurors to invoke jury nullification in the post-Ramos era. It’s an essential tool for protecting our society’s most vulnerable.
The U.S. Supreme Court decision doesn’t leave those convicted on split juries without any avenue for recourse, however, it just passes the buck to the state. Luckily, the state is getting the ball rolling in some ways. In late June, 14th Judicial District Judge Kendrick Guidry ruled that the ruling applied retroactively in the case of David Nelson, who had previously exhausted their appeals. This is the first ruling of its nature and reopens the question of the breadth of retroactive application. New Orleans District Attorney Jason Williams has expressed an intent to follow suit in retroactive application, which is encouraging.
It should be noted that Nelson is White, but the majority of victims of split jury decisions are Black. Absence of retroactive application hurts everyone and there is much more to be done if Louisiana wants to honor its constitutional promise that, “no law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations.”
The legislature could do more. State Rep. Randall Gaines, D-LaPlace, the sponsor of House Bill 346, which would provide new trials to all those convicted by split juries did not follow through with the bill’s advancement out of a stated fear that the Supreme Court could render it unconstitutional. This makes no sense in the wake of Judge Guidry’s ruling and is a weak attempt to shroud the justice being denied to over a thousand victims of split jury verdicts.
It’s time for the Louisiana legislature to step up where the U.S. Supreme Court sadly won’t. We need widespread relief for the roughly 1,500 victims of the racist lineage of split jury verdicts. Everyone should care about this because these cases are a question of jurors’ right to nullification as well. A right that we should all be intimately aware of, regardless of whether prosecutors want us to. These cases should be overturned because they deprived defendants and jurors of essential democratic rights that we’re all entitled to. Simply put, it really shouldn’t be this hard to dismantle vestiges of Jim Crow.
