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Louisiana Prosecutor Testifies in Favor of Jury Law Rooted in White Supremacy

Calcasieu Parish District Attorney John F. DeRosier testifying before the Louisana House of Representatives

Louisiana Prosecutor Testifies in Favor of Jury Law Rooted in White Supremacy

What I am about to tell you is deeply problematic. And it makes sense that of all states, it’s happening in Louisiana — which, with its sky-high incarceration rate, is the “world’s prison capital.”

According to local reports, a staggering “one in 86 adult Louisianians is doing time, nearly double the national average. Among black men from New Orleans, one in 14 is behind bars; one in seven is either in prison, on parole or on probation.”

Louisiana holds the horrible title of the world’s most incarcerated state in part because it pays local sheriffs a per diem to house inmates, who greatly rely on those payments to fund their departments. So the sheriffs are incentivized to house as many people as they can for as long as they can.

The other part of this story is something I must confess that I did not know until a few months ago. In 48 states, and in federal trials, all 12 jurors agree on the guilty verdict in order for a defendant to be convicted of a crime. In both Louisiana and Oregon, only 10 out of 12 jurors have to agree on a guilty verdict in felony cases. In Louisiana, non-unanimous verdicts are allowed in murder cases — but Oregon still requires a unanimous vote to find defendants guilty of murder. In those two states alone, two people on a jury could be absolutely convinced, deadlocked and unmovable, of a defendant’s innocence, and that defendant could still be sent to prison for the rest of their natural life. In fact, this very thing has happened many times in both states. In late 2016, Cardell Hayes of New Orleans was convicted in what his defense team claimed was a self-defense killing of a former New Orleans Saints football player — even though two of the 12 jurors dissented. In April 2017, Hayes received a 25-year sentence from the judge.

Now, here’s the worst part: The non-unanimous jury law in Louisiana has its roots in post-Reconstruction era white supremacy. Indeed, the non-unanimous jury rule was formally adopted as law during the state’s 1898 constitutional convention. There, lawmakers said that their “mission was … to establish the supremacy of the white race.” Over a century later, non-unanimous verdicts are a tool to perpetuate mass incarceration and racial oppression.

As early as today, however, Louisiana could reverse course and join the rest of the nation by requiring unanimous guilty verdicts in criminal cases. State Senate Bill 243, proposed by State Senator JP Morrell, a Black man from New Orleans, would allow voters to decide if Louisiana’s constitution should be changed to require juries in felony cases to return unanimous verdicts.

But Louisiana’s extremely powerful district attorneys, who no doubt love that non-unanimous jury verdicts help them convict and sentence people to prison, are not going out without a fight. And it’s that fight that I want to show you today. It’s one of the most remarkable examples of how our modern justice system was designed to charge, convict, and sentence African Americans as easily as humanly possible as a means of systemic oppression.

One of the leading proponents of the effort to maintain non-unanimous jury verdicts is Calcasieu Parish District Attorney John F. DeRosier. Let me tell you a little bit about DeRosier and his love of mass incarceration. A local defense attorney told me that DeRosier’s office files a notice of intent to seek life without the possibility of parole for all of the juvenile offenders in his parish who are eligible for re-sentencing under the Supreme Court’s historic decision in Montgomery v. Louisiana, which held that its ban on mandatory life-without-parole sentences for juvenile offenders applies retroactively. Another thing about DeRosier: One of his top prosecutors is Hugo Holland, who has been accused of misconduct so often in capital cases that one defense attorney called him “the face of Louisiana’s broken death penalty.”

So maybe it shouldn’t have surprised me when, in late April, DeRosier, a white man, decided to testify against the legislation to repeal non-unanimous jury verdicts — arguing basically that if it ain’t broke, don’t fix it — saying “the concept has worked” for Louisiana. But what he said next set off a firestorm among Black lawmakers.

DA DeRosier testifies in favor of maintaining non-unanimous juries.

“I’ve heard a lot about this system being adopted as a result of a vestige of slavery,” DeRosier said. “I have no reason to doubt that. I’m not proud of that. That’s the way it started, but it is what it is. However, ladies and gentlemen, that was 138 years ago.”

Before I ever heard how Black lawmakers responded, DeRosier’s open, flippant, and callous admission that the way Louisiana does justice is indeed a vestige of slavery that he’s not proud of, but “it is what it is,” made my own blood boil.

You see, it is what it is not just because lawmakers in Louisiana made it that way to oppress African Americans by any means necessary over a century ago — it is what it is because Louisiana lawmakers have kept the system that way since then.

The very fact that a system was built in the shadows of slavery to oppress African Americans in the harshest, most unfair ways imaginable, is reason enough to completely re-evaluate the whole thing. But until now, over 100 years later, Louisiana has refused to do so.

Seething in righteous indignation, Louisiana House Representative Ted James, a Black attorney from Baton Rouge, struggled to hold himself together when it came time for him to respond to DeRosier. It’s best if you watch the exchange for yourself, but here’s what James said.

Louisiana House Representative Ted James confronts DA DeRosier on SB 243

“Mr. DeRosier — I am so utterly offended for you to start your comments and say ‘I know that this was rooted in slavery, but it is what it is.’ And I needed you to hear that from me. And I wish you would look at me while I’m speaking with you. Because I think I deserve that kind of respect after you just disrespected me on this committee. You are elected to represent everybody and to admit that it started in slavery and say ‘it is what it is’ — I hope the people of your parish are listening. And if they aren’t, I’m going to make sure that they know what you said today. And I am utterly offended and for you to not even look at me in my face — this is a problem.”

It was incredibly brave and necessary for James to call out this casual admission from DeRosier of the fact that the law he wants to maintain is rooted in white backlash to Black folks being freed after slavery, but that he was just fine with it because it worked well for him.

The harsh fact of the matter is that this nation has not remotely come to grips with how many of its laws are rooted in slavery and bigoted oppression. After the Civil War, the United States never said, “Let’s examine every law and policy and system and structure we have to evaluate whether or not they were created as a tools of oppression.” That never happened.

And so here we are, over a century after Louisiana created laws to oppress one group more than all others, and district attorneys, the people who serve as the primary gatekeepers of America’s justice system, are still arguing that they are fine with vestiges from slavery in their system because it works for them.

It’s disgusting and we’ve gotta lot of work to do.

Clarification: In both Louisiana and Oregon, only 10 out of 12 jurors have to agree on a guilty verdict in felony cases. In Louisiana, non-unanimous verdicts are allowed in murder cases — but Oregon still requires a unanimous vote to find defendants guilty of murder.

San Diego DA Says She Won’t Take Law Enforcement Donations — But They’re Still Fueling Her Campaign

San Diego Interim District Attorney Summer Stephan
(Still from campaign video)

San Diego DA Says She Won’t Take Law Enforcement Donations — But They’re Still Fueling Her Campaign

Immediately after a heated debate last Thursday that focused on police accountability, the criminalization of homelessness, and the use of gang databases, interim San Diego District Attorney Summer Stephan spoke to a handful of reporters in a room not far from the stage at the Chula Vista library. There, she fielded several questions about the impact that campaign contributions have had on the race, amid reports that a PAC funded by George Soros, a billionaire pushing for criminal justice reform nationwide, has spent hundreds of thousands of dollars in support of her opponent, Geneviéve Jones-Wright.

During the contentious campaign, Stephan has been positioned — and often touted herself — as “law enforcement’s choice.” But, she insisted to the reporters that night, her campaign hadn’t received any financial benefits from that support.

“Police unions have not given me campaign donations and I don’t accept campaign donations from my own team,” Stephan said, responding to a question from The Appeal. “Because I want to be very ethical when I promote them or do anything. Nor have I accepted donations from victims’ groups that we have contracts with.”

And while it’s true that Stephan’s campaign itself hasn’t accepted donations from law enforcement unions, The Appeal has found that political action committees associated with local law enforcement groups have already spent at least $313,000 to support Stephan, and almost $5,000 on negative advertisements against her opponent.

The PAC that has given the greatest amount of support to Stephan, San Diegans Against Crime, is associated with her own office. Sponsored by the San Diego Deputy District Attorneys Association, the group is comprised mostly of her own staff members (the La Mesa Police Officers Association PAC recently contributed $5,000 to it as well). The PAC has spent over $277,000 on Stephan’s re-election campaign on signs, television commercials, mailers, and polling. In contrast, Stephan’s own campaign has so far only spent just over $214,000 in 2018, according to its last filing.

Other spending in support of Stephan from law enforcement includes $12,700 from the San Diego Police Officers Association PAC, and the Deputy Sheriffs Association PAC, which has already spent $23,630.

Stephan’s campaign did not respond to a request for comment.

In San Diego County, individual donations to campaigns are capped at $800. Political parties can only contribute $51,850 to campaigns for county-wide offices. But the amount that political action committees can spend on local elections is unlimited, making those PACs, which both campaigns have taken advantage of, an easy way for groups like law enforcement unions or criminal justice reform groups to make a major impact on the race.

Law enforcement unions’ spending on district attorney campaigns has come under scrutiny across California in the lead-up to the June 5 election, especially because prosecutors who accept donations, or have received the support of law enforcement PACs, have repeatedly declined to press charges against officers who shoot unarmed civilians or engage in other forms of misconduct.

In Alameda County, incumbent District Attorney Nancy O’Malley accepted $10,000 from the Fremont police union this past November while her office was investigating three members of the union for their roles in two separate fatal shootings. By February, all three officers were cleared of wrongdoing. In Sacramento, District Attorney Anne Marie Schubert has received $420,000 in campaign contributions over the course of her three campaigns, according to The Intercept, including $13,000 in campaign donations from two local law enforcement unions just days after Stephon Clark, an unarmed Black man, was killed by Sacramento police officers in his grandparents’ backyard.

San Diego has had its own recent spate of police shootings. At an early March press conference, Stephan announced that she had cleared four separate sheriff’s deputies of criminal charges in the killings of four civilians in separate incidents in 2017. Ten days after that, the San Diego Deputy Sheriff’s Association spent over $10,000 in support of Stephan.

Geneviéve Jones-Wright’s campaign, which has focused on ending cash bail and increasing police accountability, has received $600,000 in support so far from a PAC funded by Soros.

Whether campaign donations from law enforcement truly impact the conduct of a district attorney is an open question, explained Carissa Byrne Hessick, a criminal law professor at the University of North Carolina and director of that school’s Prosecutors and Politics Project. But the perception of what that money is trying to achieve cuts both ways when it comes to campaigns.

“In some counties, incumbent DAs are facing criticism for accepting money from law enforcement unions when those incumbent DAs have to make decisions about whether to charge officers involved in use-of-force cases, and some challengers have been criticized for taking money from groups outside of their jurisdiction,” Hessick said. “The controversy in San Diego is playing out in counties across the country.”

The Appeal is an editorially independent project of Tides Advocacy and does not receive funding from any Soros-funded PAC or Soros’s Open Society Foundations. Tides Advocacy sponsors numerous other projects, however, some of which do receive funding from the Open Society Policy Center.

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Rhode Island Civil Asset Forfeiture Reform Faces an Unusual Foe: A Democratic Attorney General

Rhode Island Attorney General Peter F. Kilmartin
@AGKilmartin / Twitter

Rhode Island Civil Asset Forfeiture Reform Faces an Unusual Foe: A Democratic Attorney General

Law enforcement’s power to seize property suspected of being used in criminal activity regardless of whether the owner has been convicted of a crime has generated mounting public scrutiny of the practice, known as civil asset forfeiture. Both Nebraska and New Mexico have abolished civil asset forfeiture in recent years, and the Department of Justice under the Obama administration imposed limits on a federal program that facilitated local seizures, which have since been rolled back by Attorney General Jeff Sessions.

In Rhode Island, two pieces of legislation introduced earlier this year, Senate Bill 2681 and House Bill 7640, would sharply restrict prosecutors’ ability to seize assets, the majority of the proceeds of which are awarded to local police departments. Nearly $15.7 million in property in the state was seized by law enforcement between 2003 and 2013, according to public records obtained by local news station WPRI. In 2013, according to WPRI, 38 percent of seizures in Rhode Island were for $1,000 or less — critically, more than it might cost to hire an attorney to fight to keep the property or cash.

Supporters of the legislation say that civil asset forfeiture violates due process rights — prosecutors can seize property that they claim is related to a crime even, again, if that person is never convicted. The new legislation would limit prosecutors to seizing assets connected to an actual criminal conviction, and also protect people’s homes, vehicles worth less than $10,000 and small amounts of cash. Critically, it would ensure that the state provide a person contesting forfeiture of their property with an attorney if they cannot pay for one themselves. The legislation would also limit participation in the Department of Justice’s Equitable Sharing program, through which the federal government transferred back $23,493,801 in seized asset funds to Rhode Island law enforcement in fiscal year 2017.

Like other criminal justice reform legislation, civil asset forfeiture reform often generates unusual political alliances: The legislation is backed by the Rhode Island ACLU and spearheaded by the Rhode Island Center for Freedom and Prosperity, a conservative organization with a strong libertarian bent that argues that reform would be good for both civil rights and the state’s business climate.

Justin Katz, the center’s research director, points out that the state’s political climate has made enacting such legislation impossible in the past. “Rhode Island has a highly transactional General Assembly,” Katz told The Appeal.“Even fantastic, no-brainer ideas can be tangled up in complications about who is allowed to have a win during the course of a session. In this case, asset forfeiture reform is complicated by the obvious self interest of law enforcement agents to maintain the status quo.”

But the legislation is opposed by law enforcement and by Rhode Island Attorney General Peter F. Kilmartin, who, though a Democrat, has aggressively campaigned against legislation to legalize recreational marijuana. He has also supported a bill to make it easier to charge drug dealers with homicide when drug sales result in a fatal overdose. In an April 26 letter to the chairperson of the state Senate Judiciary Committee, Kilmartin wrote that the proposed civil asset forfeiture legislation “would enable criminal activity and create a sanctuary for criminal behavior.” Furthermore, Kilmartin warned that barring the seizure of residential properties “invites criminal activity, including narcotics activity, into our residential neighborhoods.”

Even though Rhode Island is among the nation’s smallest states, Kilmartin is in effect one of the nation’s most powerful district attorneys because his office prosecutes felonies across a state of one million people.

“Overall, I think eliminating civil asset forfeiture is a huge step forward,” said James Vita, of the National Lawyers Guild of Rhode Island. “The Attorney General’s office should be ashamed that they opposed this bill.”

Kilmartin’s office declined to provide additional comment beyond providing The Appeal with a copy of their letter of opposition.

Yet Vita also argued that legislation is flawed because it would restrict but not bar law enforcement from profiting from seized assets. It would also require the state to “prove by clear and convincing evidence that the petitioner had actual knowledge of the underlying crime giving rise to the forfeiture” — meaning that it is substantially more likely to be true than not, a lower burden of proof than what prosecutors must meet in criminal cases, guilt beyond a reasonable doubt. What’s more, property owners who even had knowledge of a crime but were not involved in it could still have their property seized.

For the strange-bedfellows alliance committed to criminal justice reform, however, the bill is still a sensible and easy step toward a better system. But the Democratic attorney general in a reliably blue state is actively fighting alongside police to sink it. The Senate and House bills are currently before their respective judiciary committees, and getting the legislation signed into law will be an uphill fight. The movement to reform civil asset forfeiture still lacks the power, for now, to ensure that this is an issue that Democratic politicians are wary to cross the cops on.

Clarification: Kilmartin’s office declined to provide additional comment beyond providing The Appeal with a copy of their letter of opposition.

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