The End of Louisiana’s “Jim Crow Jury”

Last week, Louisiana voted overwhelmingly to abolish non-unanimous jury verdicts – a relic of Jim Crow that has, since its inception, silenced black jurors with terrifying and profound precision. Louisiana was one of only two states that allowed verdicts with only ten of twelve jurors. While resistance to Jim Crow juries has always existed, a pioneering study of over 5,000 jury trials in Louisiana between 2011 and 2017 gave a final burst of momentum to the movement. Tuesday’s historic “Yes” vote on Amendment 2 came almost exactly 120 years after the Jim Crow Jury was first adopted at the Louisiana Constitutional Convention of 1898, expressly convened “to establish the supremacy of the white race in this State to the extent to which it could be legally and constitutionally done.”

120 years later, there should be no doubt that the Jim Crow jury was successful. The empirical evidence compiled exposes non-unanimous jury verdicts as an exceptionally effective tool of white supremacy, operating exactly as intended: first, to stifle the voices of black jurors who understand intimately the injustice of the criminal process, and second, to grease the wheels of the carceral machine intent on efficiently criminalizing black bodies. While black jurors made up less than a third of total votes in non-unanimous jury verdicts between 2011 and 2017, they cast more than half of these verdicts’ “empty votes,” or votes that were disregarded in a non-unanimous verdict. Not only were black jurors silenced, it was black defendants who were disproportionately convicted in these non-unanimous decisions. When a conviction was reached against a black defendant in Louisiana, there was a 43 percent chance that the verdict was non-unanimous. When the convicted defendant was white, that number dropped to 33 percent.

The margin of victory for Amendment 2—at nearly 2-to-1 (with only 3 of Louisiana’s 64 parishes opposed)—was a remarkable shift for a state that has long led the country in its tough-on-crime approach to criminal justice. Until very recently, Louisiana was the most incarcerated state in the most incarcerated country in the world. But it was another fact about Louisiana’s criminal process that featured prominently in the public debate over Amendment 2: Louisiana—and New Orleans specifically— is the wrongful conviction capital of the United States. Of the twenty-five individuals exonerated since 1990, eleven were sent to prison by non-unanimous jury convictions. 85 percent of voters in New Orleans voted in favor of the Amendment, which, alone, gave it almost enough support to succeed. The second highest percentage of support came from Caddo Parish, where more people were sentenced to death per capita from 2010 to 2014 than any other county in the United States. (The Parish’s former District Attorney, Dale Cox, has often said that Louisiana needs to “kill more people.”)

There were few clear indicators, however, that determined how a parish would vote, revealing the true extent of the campaign’s support. Some of the most non-white parishes, like East Carroll and Madison, had relatively low percentages of “Yes” votes, while some predominantly white parishes, like Jefferson, had some of the highest percentages. One of the few factors that did seem to have an effect was the level of vocal opposition from that Parish’s district attorney. In Sabine Parish, one of the three parishes that voted in opposition, District Attorney Don Burkett was one of the most outspoken critics of Amendment 2. Yet in an ironic twist, the powerful Louisiana District Attorneys Association (that has long fought for split-juries) did not take a position on Amendment 2. The LDAA does not take public stances unless it reaches a unanimous decision amongst its members.

Amendment 2’s overwhelming victory should not be understated: grass-roots organizers built an extraordinarily diverse coalition that should serve as a model for justice reform in the future. As Mercedes Montagnes of the Promise of Justice Initiative told us, “Our courts hold out the promise of justice for every citizen. With the passage of this Amendment, we are one step closer to making this promise a reality for the people of Louisiana. Together, our coalition and the people of Louisiana have shown that we are ready to move our criminal justice system forward and make justice a reality for all.”

As the movement looks ahead to the next battle for equal justice, how we frame this victory is critical. Across the political spectrum, Amendment 2’s success has been heralded as the final knockout blow for Jim Crow. “You, now, ladies and gentlemen have ended 138 years of Jim Crow,” declared Sen. J.P. Morrell, the sponsor of the legislation that led to Amendment 2’s place on the ballot. And while non-unanimous jury verdicts may have been the most egregious relic of Jim Crow left standing, they were simply the most visible piece of Jim Crow’s legacy on our criminal legal system, signifying the rot that reaches to the core of criminal justice in the United States. The abolition of the Jim Crow Jury is not the final blow, but rather, an essential first step in the long process of eradicating the structural racism at the heart of the country’s carceral regime.

Tennessee Plans to Execute Edmund Zagorski in Electric Chair Tonight

Tonight, in Tennessee, barring any last minute intervention, Edmund Zagorski will be strapped into an electric chair. Four sponges soaked in brine will be attached to his ankles to increase conductivity, another brine-soaked sponge will be placed on his forehead, a shroud will be placed over his face, and he will be shocked to death. Two shocks, both 1750 volts.

Mr. Zagorski requested that he be executed by electrocution on October 8th, just hours after the Tennessee Supreme Court upheld the use of a 3-drug lethal injection cocktail, which multiple experts have warned would lead to a very painful death. Mr. Zagorski said that he preferred the thought of a 35 second death, with two large shocks, to a potentially protracted, agonizing death via lethal injection. He’s not alone in his trepidation — this summer, in an effort to avoid a botched execution, eight death row prisoners in Alabama requested to be executed in the gas chamber, rather than face lethal injection.

But in choosing the electric chair, will a slow and painful death be avoided? Other death penalty states have moved away from the use of the electric chair; the Supreme Courts in Georgia and Nebraska ruled that its use is unconstitutional. In the 5-4 Georgia Supreme Court ruling, the electric chair was denounced for “its specter of excruciating pain and its certainty of cooked brains and blistered bodies.” The ruling went on to say that death via electric chair inflicts “purposeless physical violence and needless mutilation that makes no measurable contribution to accepted goals of punishment.” There are multiple instances of botched executions via electric chair. Jesse Tafero, who was executed in Florida in 1990, had smoke and flames shooting from his head. In 1999, blood spilled from under an prisoner’s mask as he was being shocked to death in the electric chair.

Compounding an already horrific situation, the electric chair which will be used to kill Zagorski was built by a self-taught expert — with no engineering degree — and hasn’t been used for over a decade. The expert, Fred Leuchter, worries that his device will malfunction. “What I’m worried about now is Tennessee’s got an electric chair that’s going to hurt someone or cause problems. And it’s got my name on it,” Leuchter told AP. “I don’t think it’s going to be humane.”

The last execution using the electric chair was in Virginia, in 2013. There is no humane means of executing another human. But it is especially tragic that in 2018, a person sentenced to die must be forced to choose a method of execution that has been ruled unconstitutional and cruel, in an attempt to avoid another method that is likely unconstitutional and cruel.

The Tennessean has published a timeline of what tomorrow’s execution will look like, below.

At 5 PM, Zagorski will be dressed in cotton pants, a shirt and cotton socks or cloth house shoes.

Immediate family of the victims, two men Zagorski is convicted of killing, will arrive at the prison by 6:15 p.m. Around the same time, prison staff will shave Zagorski’s head and  legs.

At 7 p.m., prison staff will take Zagorski out of his cell next to the execution chamber. He will be led to the electric chair.

Staff will strap Zagorski into the chair with an electric chair harness and wrist straps.” Four sponges soaked in salt water will be strapped around his ankles to increase conductivity.

Zagorski’s lawyer, federal public defender Kelley Henry, and an attorney for the state will leave the execution chamber.

At 7:10 p.m., blinds to the witness rooms will open and the warden will ask Zagorski for last words.

After that, prison staff will place another sponge soaked in salt water on Zagorski’s head. Staff will then place the electric chair head piece” on Zagorski’s head. They will also  place a shroud around his face.

More salt brine will be poured over the ankle sponges.

The warden will give the signal to proceed, and the executioner will activate the electric chair.

The electric chair will release 1,750 volts of electricity for 20 seconds, will stop for 15  seconds and then will release 1,750 volts for another 15 seconds.

After the first wave of electricity, officials will wait five minutes and then close the blinds into the witness room.

A doctor will check Zagorski for signs of life. If there are none, the doctor will pronounce him dead.

If Zagorski is still alive, the blinds will be raised, another round of electricity will be administered and the doctor will be called in again.

The warden will announce when Zagorski’s death sentence is complete, and will ask witnesses to leave.