Sally Joughin & Jim Kahan, members of the Multnomah Democrats Platform Committee’s Criminal Justice Study Group
The criminal justice system in the United States is deeply flawed in many ways. While there are many resources for prosecutors, it is difficult for the majority of defendants in terms of the cost of a private attorney and inadequate support for public defenders for the indigent people who qualify for one. Prosecutors try to close as many cases as possible through plea bargaining, often by threatening charges that will result in long sentences should the defendant opt for a trial and lose. While the legal standard for a verdict of guilty is “beyond a reasonable doubt,” that standard does not have a universally defined understanding, which introduces a random component into any jury trial.
While these and other aspects of our criminal justice system operate in favor of conviction and against exoneration, one feature of the system that works in the other direction is a requirement for a unanimous jury decision in felony trials. In federal and 48 states’ felony trials, prosecutors had to convince all 12 of the jury members who heard the evidence in order to convict a defendant. If all 12 jurors couldn’t agree, it was a “hung jury”; prosecutors then decide whether to re-try the case or drop it. The two exceptions to requiring unanimity were Louisiana and Oregon. Louisiana’s acceptance of nonunanimous verdicts, which dated from 1898 and had explicit connections to facilitating the convictions of Black defendants, was eliminated by LA voters in 2018. Oregon’s policy, instituted in 1934, was also rooted in discrimination—to mute the effects of Blacks and Jews who might become jurors. In 1972 the US Supreme Court [SCOTUS] narrowly ruled in an Oregon case (Apodaca v. Oregon) that states did not have to align with the federally constitutional policy of requiring unanimous juries, even though 48 of them did so.
In 2019, Evangelisto Ramos, who had been convicted in Louisiana in 2016 by a 10-2 jury verdict, appealed his case to the Supreme Court. This time SCOTUS ruled 6-3 that all non-unanimous jury decisions were unconstitutional. This April 2020 ruling not only brought Oregon into compliance with all the other states, but also applied to LA and OR cases still under appeal. In a later case, (Edwards v. Vannoy, May 2021) SCOTUS upheld its precedent that new rulings (such as Ramos) are not federally retroactive to past “settled” cases, leaving it to Louisiana and Oregon to make their own decisions about retroactive application.
In March 2021, even before the ruling in Edwards v. Vannoy, the Justice Study Group of the Multnomah Democrats’ Platform Committee joined the Still in Prison coalition of over 40 organizations, led by legal experts, calling on Oregon’s Attorney General to allow all individuals previously convicted by an unconstitutional non-unanimous jury to appeal their cases. In July the Study Group, seeing no movement by AG Rosenblum, submitted its own Resolution, calling for retroactivity, to the Multnomah Democratic Party’s Central Committee, which passed it by an 84% vote. That Resolution called on our AG to take action, and—absent that action—for the Governor to call a special session as soon as possible so that the Legislature could take action, or for a defendant’s attorney to appeal to the Oregon Supreme Court for relief.
While an 84% vote in support of retroactively addressing unconstitutional convictions is substantial, the small percentage of opposition revealed some lack of understanding of the extent to which our trial system is flawed. While it is true that no criminal justice system is perfect, and that some innocent defendants will be convicted and some guilty defendants will be acquitted or not receive a verdict because of a hung jury, we must look carefully at what this means. The established criterion of “guilty beyond a reasonable doubt” directly conveys the message that our society believes that it is more important that an innocent defendant not be convicted than a guilty defendant go free. So yes, it is possible—by retroactively applying the non-unanimous jury decision—that some “dangerous criminals” might go free, but the overall effect on public safety will be small given the errors that are known to exist in our flawed system.
And consider this: Only half of serious crimes are reported. For only 11% of those reported crimes do the police arrest somebody; and only 2% of such arrests result in conviction! Moreover, there are well-known racial and socio-economic biases involved in arrests, trials, convictions and sentences, resulting in the disproportionate incarceration of people of color and poor people. In addition, the objective of proving guilt beyond a reasonable doubt by presentation of evidence has inherent uncertainties, as jury members are known to form their opinions on the basis of their own biases, tricks by prosecutors, and other factors. As one supporter of the Resolution pointed out at the Multnomah Democrats’ meeting, if the prosecution couldn’t convince all 12 jurors that the defendant was guilty, why should we assume guilt? This, indeed, was the conclusion of SCOTUS by a 6-3 vote.
In seeking public safety, our system of trials and convictions is only one of many factors that need to be addressed. But in the case of Oregon being out of step with the rest of the nation for 86 years by unconstitutionally convicting with non-unanimous juries, now is the time to reverse this anomaly. Reconsidering a few hundred old cases may present some difficulties, but will not significantly impact public safety; however, it might make up for Oregon’s failure to reform its unfair unconstitutional behavior.
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