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After Victory in Louisiana, Oregon Is Now The Only State Using Split Juries to Convict People

As in Louisiana, Oregon’s practice is rooted in its own rich history of white supremacy.

A second line parade in New Orleans campaigns for unanimous juries.Yes on Amendment 2 Facebook video

On Tuesday, Louisiana voters overwhelmingly passed a ballot measure which will phase out the state’s Jim Crow-era practice of allowing split guilty verdicts in felony cases. The ballot initiative campaign was led by a coalition of grassroots organizations, but, after the state legislature agreed to put it on the ballot, numerous prosecutors, and even the state’s Republican Party, publicly backed the change.

With this widespread support, a majority of voters in nearly every district across the state voted to repeal the practice. Even Calcasieu Parish, where the local prosecutor controversially defended the practice while acknowledging its white supremacist origins, saw a majority of voters approve the initiative.

The now repealed Louisiana law was passed during a post-Reconstruction constitutional convention, where lawmakers openly declared that their mission was “to establish the supremacy of the white race.” And the law functioned as its writers intended well over a century after the fact. Historically, the law has disproportionately worked against Black defendants, who were convicted more frequently in cases when one or two jurors felt reasonable doubt about the accusations. An Advocate analysis of hundreds of felony convictions in parishes across the state found that 40 percent of such decisions came over the objections of one or two jurors. But the Black defendants in such cases had a conviction rate 10 points higher than that of white defendants, 43 percent versus 33 percent.

Across the state, roughly 2,000 people today are serving life sentences as a result of the law. People convicted on split juries, however, will not receive any retroactive benefits from the law’s passage.

Louisiana’s reform now leaves Oregon as the only state in the country that allows split juries to produce guilty verdicts for felony cases, other than murder. As Louisiana began to re-evaluate its rule, some efforts to bring Oregon in line with the rest of the nation have also started gaining steam.

Nonunanimous verdicts have sent hundreds to prison in Oregon. A 2009 review by the state’s Office of Public Defense Services Appellate Division of 662 cases on appeal found that there were nonunanimous verdicts in nearly 66 percent of cases where the jury vote was recorded. (The study was not necessarily a representative sample of all felony cases, but even its most conservative estimate indicated that at least 40 percent of all guilty jury verdicts in felony cases featured nonunanimity.)

As in Louisiana, Oregon’s practice is rooted in its own rich history of white supremacy. Much of the momentum for the 1934 constitutional amendment was sparked after public outrage over a manslaughter verdict for a case involving a Jewish defendant, Jake Silverman, the year prior. One of the 12 jurors objected to Silverman’s murder charge, and as a compromise he was convicted for manslaughter. In response to the verdict, Portland’s main newspaper published an editorial claiming that southern and eastern European migrants had spoiled the jury system.

“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 wrote. Explicitly citing the Silverman case the following year, opponents of nonunanimous juries campaigned for a state constitutional amendment, which passed with a 58 percent vote.

Over 70 years later, a consensus is growing that the rule should change—but the path forward is unpredictable. Olan Wilson, a Black man, is now challenging the provision in state court for violating the U.S. Constitution’s equal protection clause. In 2016, Wilson argued that he did not receive a fair trial because only one person on his jury was Black. The Black juror was one of two to vote not guilty, but these objections were overridden because of the nonunanimous jury rule. His case is working its way through the state’s appeals court, which could rule the practice is unconstitutional.

County prosecutors also tried to write their own ballot initiative to require unanimous juries, but quickly abandoned the effort. In January, citing issues of racism and bias, Oregon’s District Attorneys Association publicly declared that it would lead a campaign to repeal the law. At the time, Multnomah County District Attorney Rod Underhill proclaimed, “We stand emphatic and firm in our shared belief that racism, bias, prejudice and discrimination simply cannot play a role in a criminal justice system.”

But soon after the announcement, it came to light that the association intended to repeal another provision of the 1934 amendment that gave defendants the right to choose a jury trial or a judge-only trial. Defense attorneys and criminal justice reform advocates publicly opposed the measure. The DAs scrapped their proposal in response to the backlash.

What happens next is still up in the air, according to Aliza Kaplan, a law professor at Lewis & Clark Law School who is one of the major figures pushing for jury reform in Oregon. In an email, Kaplan noted: “There is a possibility of legislation during this session (and there seems to be support) that could get rid of them but it may be too legalistic to get there, so more likely, it will end up a ballot initiative.”

At least one outspoken Oregon prosecutor is hoping the system will stay the same. Josh Marquis, the Clatsop County DA and a member of the Board of Directors for National District Attorneys Association, argues that the split-verdict practice benefited the system by producing fewer hung juries—when a jury cannot come to a consensus—overall.

Fewer hung juries is not a just outcome, said Kaplan. Some prosecutors think hung juries “are a waste of resources,” she told The Appeal. “But if its a hung jury, it’s basically showing that the prosecution couldn’t prove their case beyond a reasonable doubt.”

Marquis, who is set to retire at the end of this year, acknowledges that the calls for reform have momentum and support from younger prosecutors. “There’s a broad push in the Oregon legislature, including from young DAs, most of them much younger and less experienced than me, to support it,” he said in a phone interview. “Until two years ago, I never heard defense attorneys complaining about it.”

Last month, Oregon’s House Judiciary Committee chairperson, Jeff Barker, told the Willamette Week that he expected a bill ending the practice to come before him.

The change could not come soon enough, argues Kaplan. The continuing use of nonunanimous juries “leaves us behind Louisiana on criminal justice issues,” she said. “I think that is incredibly sad and telling. It’s time we get rid of them.”