by Jo Ellen Nott

On December 30, 2022, the Oregon Supreme Court ruled that hundreds of prisoners who were convicted by non-unanimous juries have a right to a new trial. The rulings handed down on the last Friday of 2022 ended years of legal challenges in Oregon, after the U.S. Supreme Court ruled that such sentences are unconstitutional in 2020.

Oregon and Louisiana were the only two states in the nation that allowed for non-unanimous guilty verdicts before the U.S. Supreme Court outlawed them in 2020. In the 2020 ruling known as Ramos v. Louisiana, 140 S. Ct. 1390 (2020), the nation’s highest court noted that split jury convictions violate a citizen’s Sixth Amendment rights.

The non-unanimous jury laws passed in both states were steeped in racism from a century ago. Louisiana legalized convictions resulting from split juries during Jim Crow, so white landowners could indenture Black Americans more easily. Oregon stopped requiring unanimous verdicts in 1934, fearing the effect of ethnic minorities on jury pools. The 1934 decision was a reaction to public outrage that a jury had convicted a Jew of manslaughter instead of murder in a gang-related conflict in which the slain man was a Protestant.

After its 2020 decision, the U.S. Supreme Court reduced the impact of its ruling in the 2021 follow-up case that decreed non-unanimous verdicts could only be challenged in already open or future federal criminal cases. However, the Court ruled that individual states remain free to determine the retroactivity of past convictions. In October 2022, Louisiana followed the high court ruling to not permit retrying earlier convictions by a non-unanimous verdict.

The December 2022 ruling by the Oregon Supreme Court invalidated 86 years of non-unanimous verdicts. In a concurring opinion, Justice Pro Tempore Richard Baldwin called the authorization of 10-2 and 11-1 jury verdicts in 1934 a “self-inflicted injury” that was intended to nullify the voice of non-white jurors. Baldwin wrote: “We must understand that the passage of our non-unanimous jury-verdict law has not only caused great harm to people of color [but] that unchecked bigotry also undermined the fundamental Sixth Amendment rights of all Oregonians for nearly a century.”

The Oregon District Attorneys Association views the ruling with skepticism, noting that most cases that must be re-tried will not address racial discrimination. The Association cited a report from the Oregon Criminal Justice Commission showing most split jury cases involve white men convicted of sex or assault crimes.

Spokesperson for the Multnomah County District Attorney’s Office Elisabeth Shepard warns of the impact the decision will have on the limited resources of the criminal justice system in Oregon and the impact on the victims who will have their cases unexpectedly reopened.

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