We all know that if we are brought before a jury, with the power to convict us of criminal offenses, there must be a unanimous decision. If not, it’s a mistrial, or hung jury, and at least for the moment, we remain innocent before the law. This is a long established rule embedded in our constitution. We all know that.
Well, actually we only think we know that. If we were tried in a state court in either Louisiana or Oregon, ten or eleven votes to convict will do just fine. Really? Yes, really, actually, truly.
So how in the hell did this come about and how long has it been this way? Good questions.
Let’s start with Louisiana, and the state prison known as Angola. As you may, or may not know, Angola is as much a working farm, with convict labor, as it is a prison. How’d that happen? When? Excellent questions. Here’s how and why. About forty-six percent of Louisiana’s population was in slavery when the thirteenth amendment passed. While a small portion of that population was not engaged in hard labor, children under that age of four or five, the rest were – cheap forced labor. The state economy was absolutely dependent of forced, cheap labor. The entire economic system of Louisiana was at risk. What to do?
In the early 1880s, a former confederate general, one Samuel James devised a solution. He bought a plantation known as Angola. It was later made the Louisiana state prison. Very rapidly, prison-correctional institution policy morphed into a convict leasing system. This provided James with plenty of cheap, forced labor, initially. However there was the reality of supply and demand. And the demand for cheap forced labor far outstripped the supply. Solution? Make everything from attempted murder to bank robbing to vagrancy to, well, you name it, a crime punishable by long sentences of hard labor at … Angola.
But then there was the matter of a trial in front of twelve jurors. And the prosecutors needed a unanimous decision. And forty-six percent of the population was black, newly freed slaves. So, the state constitution was amended, rewritten, savaged to permit a non-unanimous decision for anything short of murder, anything. Wa la, problem solved. This is still the policy and Angola in still very much a profitable prison farm and Louisiana has the highest incarceration rate of any state in America today.
When Thomas Symm reflected on the ninety-fours days of work on altering the constitution in 1898, he opined that their job was to establish, by law, the absolute supremacy of the white race for all time. He strongly believed they accomplished their goal. And non-unanimous jury decisions was one of their greatest accomplishments. Send ’em to Angola. That law remains intact today and Angola has continued its uninterrupted run as the champion provider of cheap forced labor.
Oregon was admitted to the US with a clause in its constitution that prohibited African Americans from living in, owning property in, traveling in Oregon. Seems a lot of KKK members settled there right after the Civil war. However, this is not why they have the non-unanimous jury system as does Louisiana. That you can blame on a Jewish man named Sliverman. Mr. Silverman killed a WASP in Oregon in 1934. He was tried, and convicted, but not sentenced to death. There was one holdout on the death penalty. So, in this case, eleven angry men. The WASP population of the state was outraged that a Jew could kill a protestant and not get the chair (actually I think it was the hangman then). This must never happen again. Changed the rules on convictions, no more non-uanimous juries letting those Jews get away with murder.
Today, in the immediate present, Oregon’s legal community seems to be ready to shed this particular bad rep. Louisiana? Not really, still need that labor force for the Angola prison farm.