Singer-Songwriter John Legend is calling on the people of Louisiana to alter their constitution to require unanimous juries to convict felony defendants in a Tuesday op-ed in the Washington Post.
The crux of Legend’s argument is that Louisiana’s white male-written constitution was designed to discount the input of blacks, who make up nearly a third of the state’s population, in jury decisions. He writes:
Here’s why: During Louisiana’s all-white constitutional convention in 1898, delegates passed a series of measures specifically designed to “perpetuate the supremacy of the Anglo-Saxon race in Louisiana.” Non-unanimous juries were one of those measures, and the intent was clear: If the federal Constitution required that African Americans be allowed to serve on juries, the state constitution would make sure that minority votes could be discounted.
The argument closely mirrors an op-ed by law professor Angela Allen-Bell, the same paper published last year and a report Louisiana’s Advocate paper.
As a practical matter, only Louisiana and Oregon allow felony convictions by votes of 10-2. Other states, however, allow for convictions by only eight or even six jurors, as in Florida. The U.S. Constitution allows for non-unanimous guilty verdicts in state courts. The criminal procedure of a state’s own courts are held to be such a close function of the state government that the full weight of the Sixth Amendment is not applied against states. Just last year the Supreme Court refused to reconsider this long-standing interpretation, indicating the federal judiciary is unlikely to change these states’ laws for them.
Legend makes no indication whether he considers Oregon’s law, enacted at a time the state had virtually no black residents, to be a legacy of “white supremacy” designed to insure black mass incarceration in a state where blacks, in 2010, made up less that two percent of the population. Professor Allen-Bell, however, did make that argument in her op-ed, citing a few anecdotes of Ku Klux Klan activity in the state in the 1930s.
Legend runs FreeAmerica, a non-profit aimed at lower incarceration — not crime — rates.
In his op-ed, Legend cites with glowing approval Louisiana’s drop from the country’s highest incarceration rate — to the second highest — after it implemented some of his group’s proposals. “The reforms passed after my trip to Baton Rouge have already pushed Louisiana from being the nation’s leader in incarceration to the No. 2 spot. I urge Louisiana voters to continue this downward trajectory,” he writes.
What Legend does not mention is that Louisiana’s violent crime rate remains extraordinarily high. According to the FBI Unified Crime Statistics for 2016, Louisiana is fifth among the states in forcible rape, eighth in robbery, and far and away number one in murder.
Legend also neglects to mention that the vast majority of murder victims in New Orleans are black men. In 2017, the clearance rate — the number of murder cases where a suspect is found and charged — fell below 19 percent and below 14 percent for black male victims, meaning more than 86 percent of their killers never saw the inside of a courtroom. Meanwhile, only 16 percent of New Orleans women who reported their rapes to police saw someone arrested for the crime. Louisiana State University criminologist Peter Scharf called the phenomenon a “national disaster” in a USA Today report last week.
And, contrary to Legend’s suggestions, the ability for Louisiana prosecutors to secure non-unanimous jury convictions has hardly resulted in a system where the small percentage of serious criminals who do make it to court in Louisiana are universally locked up. A 2014 report cited by New Orleans’s Times-Picayune found that prosecutors in Louisiana’s largest city secure convictions in only 44 percent of felony cases.