Louisiana voters last week decided to do away with that state's oddball rule that allowed nonunanimous juries to decide criminal felony cases. That leaves just one state in which a jury can convict a defendant of a felony on a 10-2 vote. Can you guess what that state is?
That's right. But there's an excellent chance that Oregon voters will get a chance in 2020 to erase this stain on the state's constitution — and legislators are kicking around a fix in the 2019 session that could cover the gap until that election.
Until Tuesday night, Oregon and Louisiana were the only two states to allow a nonunanimous jury to decide a felony case, although Oregon does require unanimous juries in murder or aggravated murder cases. In Tuesday's election, though, 65 percent of Louisiana voters approved a constitutional amendment to do away with nonunanimous convictions; the amendment goes into effect on Jan. 1. The measure drew support from political players of every stripe, from the state's Republican Party to the Southern Poverty Law Center.
In Louisiana, the nonunanimous jury rule dates back to 1898; scholars have argued that the measure was intended to limit the influence of African-American jurors.
Oregon's nonunanimous jury practice also was born out of prejudice — but in this case, it was anti-immigrant fervor that paved the way.
The state amended its constitution in 1934 to allow juries to decide most felony cases on 10-2 votes. Legal scholars (most notably, Aliza Kaplan of Lewis & Clark Law School, who wrote an influential piece on this topic) point to a sensational Columbia County murder case that paved the way for the ill-considered amendment.
That 1933 case involved a Jewish suspect, Jake Silverman, on trial for murder. One juror held out against conviction, and the jury eventually reached a compromise guilty verdict on a lesser charge of manslaughter. A judge sentenced Silverman to three years in prison.
The backlash was considerable. The Morning Oregonian, for example, railed against the verdict on its editorial pages, in language that was — well, not even borderline racist, but you can be the judge. Consider this excerpt from a November 1933 editorial: "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." The newspaper previously had editorialized against so-called "mixed-blood" jurors. (To be fair, The Oregonian recently recanted its 1933 editorial position on this matter.)
The Legislature, responding to the outcry, voted to place a constitutional amendment on the May 1934 ballot to allow nonunanimous juries. The measure drew no organized opposition and was approved by 58 percent of voters.
Since then, a number of attempts have been made to amend the constitution on this point — including a recent effort by the Oregon District Attorneys Association — but none has managed to gain much traction. (The effort by the District Attorneys Association seemed to lose steam after a premature rollout of a website leaked critical details, but many Oregon prosecutors support eliminating nonunanimous verdicts.)
Since the effort requires amending the constitution, it would require a vote. Last week, Democratic House Majority Leader Jennifer Williamson said she'll sponsor two bills on the matter in the 2019 Legislature: One would refer the question to voters in the 2020 general election. The other, she said, would be a statutory fix that would seek to ensure we don't have to wait until after the 2020 election to do away with nonunanimous juries.
Oregonians love to brag about the state's independence, how we love to stand apart. But here's a case where we need to fall into step with the rest of the nation, and the sooner we do that, the better. (mm)