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Excerpted from: Thomas Ward Frampton, The Jim Crow Jury, 71 Vanderbilt Law Review 1593 (October 2018) (297 Footnotes) (Full Document)

Thomas Ward FramptonOn May 18, 1896, the Comité des Citoyens--an Afro-Creole civil rights organization based in New Orleans--suffered two losses at the United States Supreme Court. The first was a constitutional challenge dubbed “the Jim Crow car” case; Homer A. Plessy, a light-skinned activist handpicked for his role by the Comité, was facing a misdemeanor charge for intentionally violating Louisiana's Separate Car Act. Plessy v. Ferguson, rejecting a Fourteenth Amendment challenge to the statute, appropriately occupies a leading place in the “anti-canon” of American constitutional history.

The second case, another criminal appeal stemming from the same courthouse in Orleans Parish, largely has been forgotten. James Murray, a black man, was condemned to death by an all-white jury for murdering a white watchman. The Comité funded a legal challenge on Murray's behalf as part of a larger campaign to oppose the rise of what the organization called “the Jim Crow jury.” Since 1875, federal law prohibited the exclusion of state court jurors on the basis of race, and for a short period, these rights were enforced. Two decades later, however, black citizens' access “into the sanctum sanctorum of justice--the jury box” sharply curtailed across the South, despite dogged efforts by activists and frequent legal challenges. Murray v. Louisiana was typical of these cases: in a short opinion, the Court denied Murray relief, noting that at least a few black jurors made it into the large pool of prospective grand and petit jurors. Two months later, “crowds fill[ed] the streets” of New Orleans to catch a glimpse of the botched execution, during which Murray's hanging body “was racked by spasms and convulsions” as though “in the throes of electrocution.” Murray gasped for air for over nineteen minutes before finally succumbing. Across the South, the exclusion of black jurors from the jury box, in tandem with the exclusion of black voters from the ballot box, served as a key lever for the reassertion of white supremacy.

Over a century later, the jury box continues to reflect and reproduce racial hierarchies in the United States. Recent scholarship illustrates how the legacies of Jim Crow infect and permeate contemporary criminal justice--from surveillance and policing to mass incarceration and execution. And, in a reprise of the Comité des Citoyens' work, a new generation of activists is forcefully arguing for the centrality of criminal justice reform in the contemporary movement for civil rights. But the enduring role of racial exclusion in jury selection--and the stark, outcome-determinative impact of this exclusion--remains undercontextualized and inadequately documented.

This Article argues for the salience of these continuities.

Part I presents new archival research resurrecting the lost history of the late nineteenth-century struggle against “the Jim Crow jury,” a movement across the post-Reconstruction South that contested racial exclusion from juries. While historians and legal scholars have devoted significant attention to black suffrage restrictions and the implementation of de jure segregation during the Plessy era, the concomitant battle over the jury box has received significantly less attention. The social and political meaning of the jury during this period--and activists' mobilization, both inside and outside the courtroom, against the exclusion of black jurors--have gone almost entirely unexamined. For both civil rights activists and their antagonists in post-Reconstruction America, however, the racial policing of the jury box was anything but secondary; this Article underscores the profound symbolic and practical importance of the jury after the fall of Reconstruction. Particularly as the Supreme Court evinces renewed interest in issues of racial bias and the jury--as it did last Term in Peña-Rodriguez v. Colorado and the Term before in Foster v. Chatman this research provides some historical context for the fraught intersections of criminal justice, the jury, and movements for racial equality in America.

It also solves a historical puzzle with important contemporary implications. Oregon and Louisiana still allow nonunanimous juries to return verdicts in serious felony cases. In recent years, there has been a flurry of scholarly and popular attention devoted to the issue of nonunanimity in both states, with several scholars observing that the practice was first adopted in Louisiana at a Constitutional Convention expressly convened “to establish the supremacy of the white race.” An Equal Protection Clause challenge to the constitutionality of nonunanimous verdicts in Louisiana, however, recently failed. Although there was “clearly ... racist intent to disenfranchise African American voters through the 1898 Constitution,” a state appellate court concluded that the existing scholarship failed to show evidence that the contemporaneous shift to nonunanimous verdicts was motivated by hostility toward black jurors.

This Article's research fills the gap regarding the Louisiana jury law's original purpose. Across the post-Reconstruction South, nonunanimity gained political traction as a mechanism for vitiating the veto power that the occasional minority juror might wield through his dissenting vote. In Louisiana, where black jury participation remained relatively robust into the late nineteenth century, these reform proposals eventually made their way into law. Understood in its full context, the discriminatory origins of this peculiar jury system are inescapable.

Part II turns to the Jim Crow jury today, offering the most comprehensive data assembled to date on race, jury selection, and jury deliberation in U.S. courts. Through an analysis of a new dataset--which includes information on thousands of Louisiana jury trials (and over 13,000 individual race-coded prosecution and defense peremptory strikes)--this Article demonstrates that the systematic exclusion of nonwhite jurors remains ubiquitous. While prosecutors disproportionately target nonwhite jurors for exclusion in all cases, the disparity is significantly more pronounced in trials involving black defendants. The data also provide an unprecedented look at the impact of race in jury decisionmaking: because individual jurors' votes in nonunanimous cases are occasionally included in court records, the practical effect of racial exclusion can now be measured in a novel and illuminating way. In 199 serious felony “guilty” verdicts reached by racially mixed, nonunanimous juries, black jurors were vastly overrepresented among those jurors holding out for an acquittal. This research thus confirms a large body of social science literature suggesting that race matters in the jury box. It also provides proof of the “empty-vote” hypothesis, which posits that nonunanimous-decision rules quietly threaten “to deprive individuals with diverse views who actually serve on juries from exercising any real voting power.” The absence of a unanimity requirement continues to systematically weaken the voice of nonwhite jurors in contemporary criminal adjudication, just as it was originally intended.

Part III concludes by considering the doctrinal and policy implications of the foregoing analysis. At the most basic level, this study underscores the century-long failure of U.S. law to ensure racial equity in the jury box. While the Court has affirmed, in various formulations, the criminal defendant's right “to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria” for over a century, it has never developed a doctrinal framework that robustly protects this guarantee. Indeed, many of the same criticisms levied against Batson v. Kentucky and its progeny were made by civil rights advocates in the late nineteenth century. But judges alone are not to blame. Almost entirely overlooked in the voluminous literature on Batson and its progeny is the fact that the exclusion of jurors on the basis of race has been a federal crime since 1875, although it has been well over a century since anyone has been charged under the statute. This Part also explains that while Louisiana and Oregon's nonunanimous jury systems have been challenged unsuccessfully on due process grounds, the evidence amassed in this Article--original discriminatory intent coupled with contemporary disparate impact toward their invalidity under the Equal Protection Clause.

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Or Louisiana voters may act on their own. In May 2018, the Louisiana legislature endorsed a constitutional amendment--subject to voter approval-- that would abolish nonunanimous verdicts for offenses committed on or after January 1, 2019. The proposal will be on the November 2018 ballot. Although the vast majority of Louisiana's sixty-four district attorneys opposed the proposal, the politically powerful Louisiana District Attorneys Association remained neutral; the organization does not take a public stance on important matters unless its membership is unanimous.

Although initially “seen as a long shot,” the unexpected passage of the proposal emerged from years of agitation and organizing by activists, scholars, legal workers, defendants, and the formerly incarcerated. Notably, momentum for the bill grew amidst a political climate--in both Louisiana and across the United States--in which the operation of U.S. criminal law has once again become a focus for racial justice advocates. In 2016, Louisiana witnessed its largest mass protests in decades following the police killing of black Baton Rouge resident Alton Sterling; in 2017, pushed by a broad coalition including racial justice groups, the state passed a series of criminal-justice reforms that have dislodged Louisiana from its perennial status as the United States' (and the world's) “prison capital.” Unsurprisingly, race played a salient role in the legislative debate surrounding the constitutional amendment, too: a pivotal moment came when a prominent white opponent of the measure, to the outrage of supporters, blithely conceded that nonunanimity was a “vestige[ ] of slavery .... [I]t is what it is.” The proposal eventually garnered bipartisan backing, but it would have fallen short of the two-thirds vote needed to advance to the November ballot if not for the unanimous support of the state's Legislative Black Caucus.

This Article has sought to provide historical context for this moment, not only for the existence of nonunanimous verdicts in Louisiana, but also for the manifold ways in which race enters into our jury system and the efforts taken outside of the courtroom to reform the institution. Activists today, like those a century before them, are emphasizing that the criminal law plays a central role in perpetuating and deepening racial subordination. And the jury box, just as it was in the late nineteenth century, has become a site of social contestation. Whether Louisiana voters approve or reject the constitutional amendment, it would be a mistake to view the measure simply as a referendum on an unusual quirk of one state's criminal procedure. Rather, it represents the resumption of a political struggle that would be altogether legible to Louis Martinet, Homer Plessy, and the other activists of the Comité des Citoyens a century ago.

In April 2017, New Orleans contractors wearing face masks and bulletproof vests removed a massive stone obelisk celebrating the White League's violent 1874 insurrection against Louisiana's Reconstruction government. In the following weeks, three other Confederate monuments came down, as well, leaving behind empty pedestals at prominent locations throughout the city. The monuments' removal was not just the work of enlightened municipal officials, but rather the culmination of decades of activism, and represents a demonstration of grassroots “collective will to address entrenched systemic oppression.” But other, less tangible relics from the same era remain.

Climenko Fellow and Lecturer on Law, Harvard Law School.