Oregon Supreme Court Applies SCOTUS Ruling Retroactively, Overturns All Non-Unanimous Jury Convictions

Legal Issues

from the can't-give-back-the-time,-but-can-make-things-right dept

In April 2020, the Supreme Court of the United States issued a ruling that made things clear to the two states (Oregon and Louisiana) still inexplicably allowing people to be convicted by non-unanimous juries: to continue to do so violated the Sixth Amendment rights of the accused.

The only two states affected applied the ruling, eliminating convictions by non-unanimous verdicts. But the decision was not retroactive. So far, Louisiana courts have allowed past wrongs to go uncorrected. (Of course, this is a state that still regularly enforces its outdated criminal defamation law.)

Fortunately for Oregonians whose rights were violated by non-unanimous verdicts, the state’s highest court has decided the law should be applied retroactively, instantly invalidating 86 years of non-unanimous verdicts. (h/t Peter Bonilla)

Hundreds of felony convictions became invalid Friday after the Oregon Supreme Court struck down all nonunanimous jury verdicts reached before the practice was banned two years ago.

In a concurring opinion, Justice Pro Tempore Richard Baldwin described the authorization of 10-2 and 11-1 jury verdicts in 1934 as a “self-inflicted injury” that was intended to minimize the voice of nonwhite jurors.

“We must understand that the passage of our non-unanimous jury-verdict law has not only caused great harm to people of color,” Baldwin wrote. “That unchecked bigotry also undermined the fundamental Sixth Amendment rights of all Oregonians for nearly a century.”

The decision [PDF] makes it clear the only reason non-unanimous jury verdicts were allowed was to prevent minorities from being treated as equitable members of juries. The amendment to the state constitution was provoked by a controversial trial in which an accused murderer went free because one jury member wasn’t convinced of the suspect’s guilt. The Oregonian calls itself out for its assistance in creating this decades-long miscarriage of justice in its excellent retrospective on the amendment finally invalidated by the US Supreme Court in 2020.

“This newspaper’s opinion is that the increased urbanization of American life … and the vast immigration into America from southern and eastern Europe, of people untrained in the jury system, have combined to make the jury of twelve increasingly unwieldy and unsatisfactory,” it wrote on Nov. 25, 1933.

The remarks weren’t the first time The Morning Oregonian took aim at ethnic jurors. In previous editorials around that time, the paper bemoaned “mixed-blood” jurors and lamented the role that some immigrants played on juries, questioning their “sense of responsibility” and “views on crime and punishment.”

The state Supreme Court says the amendment put in place to allow non-unanimous verdicts was a clear violation of Constitutional rights, and one created solely to allow white jurors to override minority jurors.

As the Supreme Court recognized in Ramos, Oregon’s adoption, in 1934, of the constitutional amendment that ever since has permitted conviction of most crimes by a nonunanimous jury, “can be traced to the rise of the Ku Klux Klan and efforts to dilute the influence of racial and ethnic and religious minorities on Oregon juries.” In other words, Oregon discarded the common-law unanimous guilty verdict requirement—a requirement that Oregon courts had recognized and applied in criminal trials from the time Oregon’s Constitution went into effect in 1859 until the adoption of the 1934 amendment—precisely because it can prevent racial, religious, and other such majorities from overriding the views of minorities in determining guilt or innocence, a result that is offensive to our sense of what is fundamentally fair.

Applying the Ramos decision retroactively may be difficult — and it doesn’t give back the years state courts took away by allowing non-unanimous verdicts — but in the interest of justice, it must be done.

We recognize that our decision in this case will likely lead to the reexamination of many judgments that became final years or decades ago. But our analysis of ORS 138.530(1)(a), its grounding in the extraordinary remedy of habeas corpus, and our application of that statute when the violation of a constitutional right resulted in a criminal trial that lacked the “fairness we expect in the administration of justice,” Brooks, 226 Or at 204, compels our decision here.

The concurrence goes into more detail on the racist history of non-unanimous verdicts and is definitely worth a read. And the concurrence says this must be done — both the recounting of the racist history as well as the retroactive application of the SCOTUS ruling. To do otherwise is to allow the state and certain residents to conveniently forget the past, something that dooms them to repeat it.

As citizens of Oregon from all backgrounds—particularly based on our history of racial exclusion—we must understand that the passage of our nonunanimous jury verdict law has not only caused great harm to people of color: That unchecked bigotry also undermined the fundamental Sixth Amendment rights of all Oregonians for nearly a century.

This will tear bandages off some old wounds. But it must be done if the state of Oregon expects to avoid making similar mistakes in the future.

Filed Under: fairness, juries, jury verdicts, non-unanimous jury verdicts, oregon