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Oregon has a stain on its criminal justice system. We are one of two states – in bad company with Louisiana – with a discriminatory law that requires only 10 of 12 jurors to agree on a guilty verdict for defendants to be convicted of most felonies.
There’s not much data on how our state’s non-unanimous jury law affects juveniles specifically, but we do know that Oregon prosecutes youth in adult courts at the second-highest rate in the country, meaning that hundreds, if not thousands, of Oregon kids have been denied the unanimous jury protection that’s afforded to every defendant in other states.
We also know that the history of this standard is rooted in racism and xenophobia. In 1934, Oregon voters approved a ballot measure to allow non-unanimous jury convictions following a salacious murder trial involving a Jewish hotel proprietor. The accused, Jacob Silverman, avoided being convicted of murder because of a single hold-out juror, whose refusal to go along forced a compromise conviction of manslaughter.
At the time, in 1933, the Morning Oregonian editorialized against the hold-out juror based on openly racist beliefs. “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,” they wrote.
Just weeks after the Silverman trial ended, the state legislature referred to voters a constitutional amendment that would allow non-unanimous convictions except in first-degree murder cases. It’s been on the books ever since.
So, how does this affect Oregonians? Again, there isn’t much data specifically examining non-unanimous jury verdicts, but we do have more than a decade of Oregon court data showing that people of color are unfairly treated in the criminal justice system. (You can learn more from “Unequal Justice” – a joint project of InvestigateWest and the Pamplin Media Group.)
Since last year, there has been growing momentum to fix this relic of Oregon’s racist past.
The current law says a jury “in the circuit court ten members of the jury may render a verdict of guilty or not guilty.” Because the authors used the word “may” instead of “shall,” there could be leeway. I believe it is possible for the legislature to provide a legal interpretation of the amendment that would render it ineffective. I expect, if we move forward with this, we will be sued. For the possibility that we could remove this blight from our system though, that is a small price to pay.
Alternatively, we could refer another ballot measure to voters that would overturn the original constitutional amendment – but there’s always a chance Oregonians vote it down after an expensive campaign.
One way or another, we owe it to Oregonians to ensure our criminal justice system is fair and equitable for all.