Criminal Law

Louisiana editorial roundup

Recent editorials from Louisiana newspapers:


Oct. 7 Times-Picayune on a state constitutional amendment that would require unanimous juries for serious felony convictions:

Constitutional Amendment 2 on the ballot Nov. 6 would require unanimous juries for serious felony offenses — those where the punishment is imprisonment at hard labor. State law already requires unanimous juries in capital cases and for six-member juries in lesser felonies. If the amendment passes, it would apply to cases on or after Jan. 1, 2019.

Our state is an outlier in allowing non-unanimous juries in most felonies. The federal court system and every state except Oregon require unanimous verdicts in felony cases.

There’s a reason they do: a commitment to justice.

The unanimous jury was a basic tenet from the beginning of our nation. The Public Affairs Research Council (PAR) report on the amendment quotes President John Adams: “It is the unanimity of the jury that preserves the rights of mankind.”

Louisiana’s Constitution initially included the requirement for unanimous juries. But that changed with the post-Reconstruction Constitution, written in 1898.

The shameful intent of that convention was to take rights away from black Louisiana residents. The members of the convention didn’t even try to hide it.

The PAR report quotes the Official Journal of the 1898 Constitutional Convention: “Our mission was, in the first place, to establish the supremacy of the white race in this State to the extent to which it could be legally and constitutionally done.”

The non-unanimous jury law helped the state shift emancipated black residents from slavery into forced labor in the state’s privatized convict-lease system. That is a shameful piece of Louisiana’s history.

New Orleans Sen. J.P. Morrell sponsored the legislation to switch to unanimous juries. “I cannot think of a bigger civil rights thing we’ve done in my lifetime,” he said in May after the bill passed the Legislature. This vote is about civil rights.

It also could help ensure that prosecutors don’t overreach.

PAR notes that allowing non-unanimous juries encourages prosecutors to “over-charge a defendant in order to qualify for a 12-person jury needing 10 votes, and thus perhaps an easier conviction, as opposed to a six-person jury in which unanimity is required. This distortion can make it easier to convict someone of a greater crime than a lesser one.”

The Council for a Better Louisiana, which supports the amendment, points out in its analysis that non-unanimous juries played a major role in Louisiana for years having the nation’s highest incarceration rate. Compared with Mississippi, Louisiana has nearly twice as many people per capita serving life terms in prison, the CABL report says. Even with our state’s high murder rate, that seems distorted.

There is no definite count of how many people have been imprisoned in Louisiana by non-unanimous verdicts because some prosecutors don’t keep a record of that. But an analysis by The New Orleans Advocate newspaper of felony trials found that 40 percent of 993 convictions over a six-year period came from a split jury.

It’s not possible to know what would have happened if those jurors had been required to all agree on conviction. But the Constitutional Accountability Center says, “Evidence has shown that when unanimity is required, jurors evaluate evidence more thoroughly, spend more time deliberating, and are more likely to consider all viewpoints.”

There is strong, bipartisan support for Amendment 2 — from the state Republican Party and Americans for Prosperity-Louisiana to the ACLU Louisiana.

CABL, which in non-partisan, argues it this way: “Clearly, in this case Louisiana is out of step with other states and the federal government. The racist origins of our current law hurt Louisiana’s image, even if those who support it don’t harbor any of that racial intent. It is time for Louisiana to step into the mainstream on this issue and send a message that we are leaving behind a tarnished legacy we no longer embrace.”

It is long past time for Louisiana to correct this unjust law. Vote “yes” for Amendment 2.



Oct. 7

The Advocate on Louisiana politicians roles’ in passing a package of federal disaster policy changes, including a provision vital to flood victims:

After a tough legislative battle, Louisiana members of Congress have delivered a vital patch to a federal regulation that hurt families flooded out by violent storms around the state in 2016.

Following a key vote in the U.S. House, senators also approved new legislation that includes a provision vital to flooded families.

Louisianians hit by the 2016 flood who borrowed money from the Small Business Administration would no longer have those loans counted against them when applying for Restore Louisiana rebuilding grants.

The provision was included in a must-pass bill reauthorizing the Federal Aviation Administration.

Maybe it’s another commentary on how dysfunctional Congress is that such a common-sense provision should require a parliamentary trick to make it to the statute books. But the bill goes to President Donald Trump, who is expected to sign it.

Changing the SBA’s so-called “duplication of benefits” rules has been a priority for Louisiana’s congressional delegation since record-breaking amounts of rain flooded large swaths of the Baton Rouge metro area in August 2016, although other flooding also had serious impacts in Acadiana and north Louisiana that year.

Federal officials encouraged homeowners to take out low-interest loans from the SBA, which thousands did to rebuild their damaged homes. But few realized that federal rules would count those loans against any later grant money under regulations designed to prevent disaster victims from getting paid twice for the same damage.

Thousands of Louisiana homeowners were snagged by the rule and ended up facing decades of loan repayments when they’d otherwise have gotten free-and-clear grants for the same amount.

The delegation deserves credit for pushing the issue, particularly U.S. Sen. Bill Cassidy, R-Baton Rouge, who lobbied senators intensively. Other heroes of this battle were two House members with significant flooding in their districts: U.S. Reps. Garret Graves, R-Baton Rouge and Cedric Richmond, a Democrat whose district runs from New Orleans to north Baton Rouge, where neighborhoods were also badly hit by flooding.

Gov. John Bel Edwards particularly praised Cassidy, Graves and Richmond for their leading roles in this endeavor, but every member of the delegation had constituents who needed help with this provision, as well as the uphill battle in Congress to provide a realistic level of aid to the state to deal with the 2016 disasters.

What is dismaying is that the U.S. Department of Housing and Urban Development failed to act administratively, despite face-to-face lobbying by Graves and Cassidy, and the arguments of Edwards and state recovery officials.

That delayed this provision but did not stop it, and we compliment all those in our delegation and state government who did not let this cause fall by the wayside.



Oct. 8

American Press of Lake Charles on Louisiana’s business tax climate:

Louisiana has once again been ranked poorly on a nationwide survey, this one is the 2019 State Business Tax Climate Index by the non-partisan Tax Foundation.

The state is among the worst 10 states in the United States in this survey at number 44. The only southern state ranking worse than Louisiana is Arkansas at 46.

Other states ranking poorly are New Jersey, 50; California, New York, 48; and Connecticut, 47 …

The top 10 states for business climate were: 1. Wyoming; 2. Alaska; 3. South Dakota; 4. Florida; 5. Montana; 6. New Hampshire; 7. Oregon; 8. Utah; 9. Nevada; and 10. Indiana.

Louisiana’s sub-category ranks are Corporate Tax rate, 36; Individual Tax Rank, 32; Sales Tax Rank, 50; Property Tax Rank, 32; and Unemployment Insurance Tax Rank, 4.

Sticking out like a sore thumb is Louisiana’s sales tax ranking, dead last. That as much as anything shows how wrong Louisiana’s taxing priorities are.

The report also notes that since this survey was done, Louisiana chose to keep part of a penny sales tax that was expiring. While the state rate declined from 5 to 4.45 percent, Louisiana’s combined average state and local sales tax rate remains the second highest in the nation at 9.46 percent.

In addition, the Tax Foundation cites Louisiana’s “exceedingly complex and uncompetitive sales tax structure is still ranked worst in the nation on the sales tax component of the Index.”

Another factor in Louisiana’s poor ranking is the number of brackets in Louisiana’s income tax. The Tax Foundation ranks states with a single-rate system as the best. Louisiana’s five brackets put it in the multi-bracket category, while Alaska’s 10 brackets is the worst.

Louisiana is also penalized for being one of 13 states that has deductibility of depletion. The state also scores poorly because it is among the states that impose high rates and taxing range for business inputs, such as utilities, services, manufacturing, and leases.

There many other criticisms of Louisiana business unfriendly taxing system in the report, which can be found in its entirety on the Tax Foundation web site,