Is our jury system a vestige of white supremacy?

Nisha Waller /// 31 October 2022

Pauline and Ashley have been fighting for justice for decades in a case that saw their loved on convcited on a 10/2 jury verdict despite flimsy evidence

To be convicted of a criminal offence in England and Wales, a prosecutor needs to persuade only 10 of 12 jurors that the defendant is guilty. This was not always the case. Prior to 1967, a unanimous verdict was required, meaning that all 12 jurors had to agree. A brief glance at Hansard’s parliamentary archives tells us that British ministers gave two justifications for this change to our jury system. First, to improve cost and efficiency by reducing the number of hung juries and subsequent re-trials. Second, to prevent ‘jury nobbling’ – attempts to influence one or more jurors through threats or intimidation. Ministers argued that in allowing a majority verdict of 10-to-2, the effects of nobbling would be negated.

The majority verdict rule has largely gone unchallenged in England and Wales, and it has not been a significant matter of political debate since it was introduced in 1967. However, in the United State of Louisiana, the legitimacy of the majority verdict rule has been disputed in recent years. In 2020, the Supreme Court of Louisiana made a historic judgment in a case known as Ramos v Louisiana. Evangelisto Ramos was convicted of a serious crime by a 10-to-2 jury verdict and sentenced to life without parole. He contested his conviction by a non-unanimous jury as a denial of the Sixth Amendment right to trial by an impartial jury, arguing that the non-unanimous verdict allowed for racial discrimination. In this decision, the Supreme Court ruled that non-unanimous verdicts could no longer be used to convict people of serious crimes, amid recognition that the origins of this practice were rooted in racial prejudice.

Behind the movement that successfully ended Louisiana’s use of non-unanimous jury verdicts was ground-breaking research undertaken by Professor Angela Allen-Bell of Southern University. Professor Allen-Bell was supported by Calvin Duncan, who spent more than 28 years wrongfully imprisoned and helped draft the submission for Ramos. In her paper, How the Narrative About Non-Unanimous Criminal Jury System Became a Person of Interest in the Case Against the Deep South, Professor Allen-Bell notes that non-unanimous verdicts were formally introduced during Louisiana’s 1898 constitutional convention. Similarly to British ministers in 1967, the Louisiana delegates made clear that ‘efficiency should be the first and primary consideration’ when making changes to the judicial system. However, Professor Allen-Bell observed that ‘there was a finesse about drafting what appeared to be race-neutral legislation, which was, in fact, legislation that was racist to the core’. Indeed, she found that the 134 white delegates declared that their ‘mission was… to establish the supremacy of the white race’.

Professor Allen-Bell’s research concluded that Louisiana’s majority verdict rule was linked to Jim Crow laws which served to uphold white supremacy following the ‘abolition’ of slavery. Doing away with unanimity meant two things. Firstly, that African American jurors could not use their new voting powers to prevent convictions of other African Americans. Secondly, it allowed for quicker convictions, which in turn facilitated a production line of free prison labour – a handy replacement for free slave labour. Although the court’s opinion in Ramos ‘barely mentioned’ racist intent (which in itself is a disservice to racial justice) Ramos successfully ended a century-long failure to recognise racism in Louisiana’s jury system.

While the context in which majority verdicts were introduced in England and Wales differs significantly to that of the United States, this adjustment to our jury system was made at a time where the rights of racialised minority people in Britain consumed public and political debate. The Race Relations Act was introduced in the same period, which superseded the influx of migrants from the Commonwealth nations and rise of British Black Power movements which the state sought to repress. While ‘jury nobbling’ and ‘efficiency’ are frequently cited as the justifications for the majority verdict rule in England and Wales, Louisiana legislators’ ‘talent’ for utilising ‘race-neutral language’ has encouraged APPEAL to consider whether the majority verdict rule in England and Wales could also be rooted in racial prejudice, and what this might mean for defendants today.

The remnants of Britain’s abhorrent colonial history are very much present within our Criminal Justice System. Just last week, the judiciary of England and Wales was labelled ‘institutionally racist’, with a research report, Racial Bias and the Bench, finding that black ‘court users’ were most likely to be subject to judicial discrimination.

This Black History Month, APPEAL has launched its own research project, ‘Non-Unanimous Jury Verdicts and Racial Justice’, which will explore the potential connection between non-unanimous verdicts, race, and miscarriages of justice in England and Wales. With the support of the pioneering Ramos team, experienced criminal barristers, academics, and wrongfully convicted people (some by a majority verdict), we will explore the origins of the introduction of majority verdicts in England and Wales, to ascertain if they are rooted in racism. Might our jury system also be a ‘largely unnoticed vestige of white supremacy’? We’ll be sure to let you know what we find!

The Non-Unanimous Jury Verdicts and Racial Justice research project is being led by Nisha Waller and Naima Sakande of APPEAL. Should you want to get involved, or point us to relevant sources, writing or people, please email nisha@appeal.org.uk.

This article was first published by the Justice Gap.

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