SADOW: States Should Have Split Jury Option

Louisiana finds itself at the forefront of an interesting constitutional issue – with the possibility that bad jurisprudence could result.

The case involves the state’s non-unanimous jury requirement, placed on the ash heap of history last year when voters constitutionally prohibited the practice. Before then, the law had permitted split-jury criminal convictions, and people convicted without unanimity litter Louisiana prisons. Additionally, those whose trials began prior to 2019 also risk conviction – or may gain acquittal – according to the old provision.

Often challenged legally but rejected by the U.S. Supreme Court, the Court surprisingly took up the issue in an ongoing case. The plaintiff argues that the Court’s interpretation that federal courts must use unanimity should incorporate to all states, making an equal protection argument that split convictions inherently invite racial discrimination – and therefore this may negate the voting power of fair jurors not to convict minority defendants against other jurors who might be prejudiced against defendants for reasons of racial or other bias.

Mischief lies in the latter charge. A data set, although potentially not entirely representative because not all jurisdictions keep records of the necessary details, of Louisiana convictions over a recent six-year period revealed that of the roughly 40 percent of split convictions, black defendants registered this outcome 30 percent more often than did whites. Further, in a small subset of these cases, black jurors dissented from conviction 2.5 percent more often than whites.

This, the plaintiffs argue, on its face shows discrimination in action. But that’s not what the academic literature on jury voting argues. At a general level, juries hardly convict blacks more often than whites, at less than a 4 percent greater rate, with the literature suggesting that juror prejudice would contribute, at best, trivially to this gap.

Rather, differences in the lenses used by whites and blacks in processing trial information seems the most prominent causes of the difference. Blacks typically trust the police less and identify with the defendant more than do whites. Other factors matter as well, such as differing qualities of representation, differing uses of pretrial diversion programs, differing rates of bailing out of jail while waiting for trial, and behavior of judges varying by race of the defendant. Racial animus need not be a factor at all.

In the context of split jury convictions, black jurors may dissent more often, particularly concerning black defendants, because of these different optics. Indeed, instead of assigning the locus of “correct” decision-making to the dissenters, meaning the majority used prejudice to incorrectly convict, one could argue equally persuasively that the minority (or some portion of it) incorrectly would acquit, displaying a prejudice too much in favor of black defendants simply because of their race.

Disturbingly, this form of jury nullification has picked up support from some quarters. Some argue that blacks should engage in this to offset alleged systematic racism that government and/or society perpetrate, while others argue that even to criticize the possibility of this happening itself is racist.

Were these attitudes put into practice by even a small number of jurors, not only might this discredit the rule of law, but also the use of black jurors. Whether it could happen is something else. However, in the context of unanimity, to guard against these deleterious effects, states should have the right to use split juries as a prophylactic tool.

Contrary to the plaintiff’s assertion, allowing split convictions doesn’t necessarily permit racial prejudice to affect jury decisions. At the same time, the possibility of split convictions stands out as a means by which a state could safeguard the integrity of the judicial process against prejudicial decisions. No good constitutional reason exists to prohibit states from using split jury convictions for this or potentially other reasons.

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