The Supreme Court Cannot Let Louisiana’s Jim Crow Relic Stand

This spring the Supreme Court is expected to rule on a case (Edwards v. Vannoy) that will serve as an important test of America’s ongoing reckoning over racial injustice, and whether we will not only condemn the sins of the past—but repair their harms in the present.

The case concerns whether the Court’s April 2020 ruling invalidating Louisiana’s notoriously racist non-unanimous jury rule will apply retroactively to people who are still serving sentences imposed by split juries.

Thanks to the blood, sweat, and tears shed by the movement for Black lives, more people now understand that modern policing evolved from slave patrols, that the brutality of our prison system can be traced back to slavery, and that American capitalism itself has its roots in the slave plantations of the South.

But White America shouldn’t confuse reckoning with reconciliation, or forget the fact that for every Black Lives Matter sign displayed in a bay window, thousands of Black people are still languishing in windowless cells.

Louisiana’s non-unanimous jury rule is among the most obvious examples of the way systemic racism was hardwired into our institutions. The split-jury rule was codified at an 1898 Constitutional Convention whose express purpose was to “to establish the supremacy of the white race in the state.”

The goal was to silence the votes of Black jurors, convict more Black people of crimes, and fuel the state’s “convict leasing” system of forced manual labor. It was slavery by another name.

For more than 120 years, these “Jim Crow” juries worked exactly as they were designed, helping turn Louisiana into the world’s leading incarcerator, and condemning thousands of disproportionately Black people to prison.

There is no question that this system resulted in wrongful convictions. So far, 14 people convicted by non-unanimous jury verdicts have been exonerated. Twelve of those 14 were Black, and they were freed only after spending a combined 224 years in prison.

In 2018, the voters of Louisiana abolished the non-unanimous jury rule for future trials, and last April in Ramos v. Louisiana, the Supreme Court struck down Jim Crow juries as a violation of the Sixth Amendment.

But the ruling is not yet retroactive, which has left more than 1,500 people —80 percent of whom are Black—in a legal purgatory: convicted by an unconstitutional law, but still imprisoned because their conviction became final before April 20, 2020. Most are serving life without the possibility of parole.

While the Supreme Court decided in 1989 to limit the retroactive application of new constitutional rules, it promised that it would ensure application of the most important and basic constitutional guarantees. As several of the justices asked during oral argument, what could be more basic and important than the rule guaranteeing a unanimous verdict? Justice Neil Gorsuch asked at oral argument in Edwards, referring to the Court’s promise to enforce watershed rulings protecting constitutional rights, “Was this a false promise?”

Our Constitution was a promise too. And by denying people a unanimous jury, Louisiana broke that promise. By their very nature, the trials were unfair, the verdicts inaccurate. In every case, at least one juror voted to acquit. Had these individuals been tried almost anywhere else, the trials would have resulted in a hung jury and a mistrial. But in Louisiana, the long arm of Jim Crow imprisons them to this day.

In a stunning admission during oral argument, Louisiana’s solicitor general acknowledged that more than 1,500 people are still incarcerated by non-unanimous verdicts, but said it would be too much work to address these cases anew. But there is no provision in the Constitution that limits its fundamental rights to when they are easy or convenient to guarantee, and no grandfather clause in the Constitution that limits a person’s right to justice based upon the date of their trial.

As Gorsuch wrote in his majority opinion striking down the non-unanimous jury rule in Ramos, mistakes come with the territory of being a judge, “but it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.”