The Continuing Significance of the Non-Unanimous Jury Verdict and the Plantation Prison

By Madeleine Jennings 
Associate Editor, Vol. 22

In 1934, Oregon voters amended their Constitution to allow for non-unanimous jury verdicts in all non-first degree murder and non-capital cases.[1] The Louisiana Constitution requires unanimity only in capital cases.[2] Grounded in xenophobia and anti-Semitism, the Oregon law was passed by a ballot measure following the trial of a Jewish man who, accused of killing two Protestants, had received a lesser manslaughter conviction following a single juror hold-out.[3] The Louisiana iteration was crafted post-Reconstruction to increase convictions of then-freed Blacks, thereby increasing the for-profit labor force.[4] The State had, for decades, leased convicts to plantation owners and, in 1869, leased its prison and all of its inmates to a former major in the Confederate Army, who later moved the prisoners to Angola, the site of the former plantation, named for the country that was once home to its slaves.[5]

Once an 8,000-acre plantation, Angola now sits on 18,000 acres—roughly the size of Manhattan—and consumes its own zip code.[6] Today, it is one of the nation’s largest maximum security prisons, and has been named “America’s Bloodiest Prison.”[7]

The Louisiana and Oregon majority rules remain good law today. Each state requires just a ten- or eleven-juror consensus, among the twelve-person jury. The two states are the only, of the fifty, to not require unanimity in state criminal cases (unanimity is required in all federal criminal cases[8]). An estimated eight out of every ten convictions out of Orleans Parish are non-unanimous and, relatedly, the Parish has the highest rate of wrongful convictions in the United States.[9] The Innocence Project of New Orleans recently estimated that nearly half of its eligible exonerees were convicted by non-unanimous juries.[10]

The text of the Sixth Amendment provides no right to a unanimous jury verdict, but the Supreme Court has long recognized that right in federal criminal cases.[11] In 1972, the United States Supreme Court decided companion cases Apodaca v. Oregon[12] and Johnson v. Louisiana[13], in which the Court declined to require unanimity in state criminal cases In Apodaca, the Court split 4-1-4, with eight justices agreeing that the Sixth Amendment right applied—or did not apply—in the same manner to the federal and state governments.[14] Four posited that the right applied to both, and four, that the right applied to neither.[15] Justice Powell remained, finding that the Sixth Amendment required unanimity in federal cases, but not in state cases[16]. Dissenting in Johnson v. Louisiana, Justice Potter Stewart correctly stated that, where unanimous verdicts are not required, jurors in the majority “can simply ignore the views of their fellow panel members of a different race or class.”[17]

In the following decades, many cases around the issue have come before the Justices, but the Court has repeatedly declined to hear them.[18] The Court declined to hear Bowen v. Oregon in 2009[19] and, in 2014, declined to hear Jackson v. Louisiana and several others.[20]

Last summer, I visited Angola on one hot afternoon. The sign in the parking lot read, “Louisiana State Penitentiary,” and below that, “Burl Cain Warden.” A museum adjoins the lot.[21] Inside are old electric chairs, wooden coffins, confiscated weapons, and striped inmate costumes available for purchase. A video plays on loop in a back room, and in that video, several talking heads explain the history of Angola, the plantation and the prison. Woven through their monologues are simultaneous condemnations of, and pride in the past. Their words convey a lack of understanding of the ways in which the prison’s past and present are not so dissimilar. Angola’s location 140 miles from New Orleans is misleading in many ways. The prison functions as an annex to the city, a backyard to so many, too many New Orleanians.

There’s a daiquiri shop called the Jazz Daiquiri. Made of cinder blocks, it sits on Claiborne Avenue in New Orleans, and inside are many flavors: The L.S.U. Tiger, the Red White and Blue, the Chicken & Watermelon, and the Angola.

[1] Or. Const. Art. I, § 11.

[2] La. Const. Art. 1, § 17.

[3] Jarvis DeBerry, Historian Traces Racist Origin of Louisiana Law Allowing 10-2 Jury Verdicts, Times Picayune (May 5, 2015),

[4] Marjorie R. Esman, Guest Column: Non-Unanimous Jury Verdicts Steeped in Racist Past, The Advocate (Jan. 28, 2016),

[5] Id.

[6] Delia Cabe, Angola State Prison: A Short History, Voices Behind Bars: National Public Radio and Angola State Prison (2010),

[7] G. R., The Story of Cain: America’s Most Famous Jailer Hangs Up His Keys, The Economist (January 14, 2016),

[8] Fed. R. Crim. P. 31(a).

[9] Esman, supra note 4.

[10] Id.

[11] Andrew Cohen, Will the Supreme Court Address Louisiana’s Flawed Jury System, The Atlantic (April 23, 2014),

[12] 406 U.S. 404 (1972).

[13] 406 U.S. 356 (1972).

[14] Eugene Volokh, Non-Unanimous Criminal Jury Verdicts, The Washington Post (April 24, 2014),

[15] Id.

[16] Id. at 366.

[17] Johnson, 406 U.S. at 397 (Stewart, J., dissenting).

[18] Cohen, supra note 11.

[19] Adam Liptak, Justices Decline to Hear Some 2,000 Cases, New York Times (Oct. 5, 2009),

[20] DeBerry, supra note 3.

[21] History of Angola Prison, (last visited Feb. 20, 2017).

The views expressed herein represent the views of the author only.