Oregon shares a sordid legal history with Louisiana. Propelled by racism and xenophobia, they were the only states to allow defendants to be convicted of serious crimes without a unanimous jury verdict.
Our state now stands alone. Prodded by excellent reporting and editorial leadership from The Advocate newspaper, Louisiana voters this fall overwhelmingly amended their state constitution to require unanimous jury verdicts for all felony cases. Oregon should do the same, with the 2019 Legislature sending a constitutional amendment to voters.
Oregon requires a unanimous verdict by a 12-person jury on a murder charge but allows 11-1 and 10-2 verdicts for other felonies.
Despite being deemed constitutional in Oregon, split verdicts undermine the essential concept that a defendant be tried by a jury of his or her peers and that guilt be proved beyond a reasonable doubt. The views of the one or two peers — the dissenting jurors — can be disregarded. Split verdicts tilt the legal equation in favor the prosecution.
A potential constitutional change appears to have strong support in the Oregon Legislature, including backing from the leaders of the Senate and House Judiciary committees — Sen. Floyd Prozanski, D-Eugene, and House Majority Leader Jennifer Williamson, D-Portland.
A non-constitutional change also has been proposed; however, it seems wiser to amend the Oregon Constitution, which only voters can do, and remove any doubt as to the legality of the change.
Opponents contend that split verdicts aid efficiency in the court system and provide justice for victims by reducing the number of hung juries. But the judicial system must be fair to all, which split verdicts are not.
Non-unanimous verdicts are delivered by more than 40 percent of Oregon felony juries, an Oregon Law Review article by Aliza B. Kaplan and Amy Saack states. That high percentage raises concerns about whether the jurors examined the case in as much depth as if a unanimous verdict were necessary.
Our state's rationale for split verdicts was never good. "Oregonians became angry that a Jewish man accused of killing a Protestant was spared a murder conviction and death sentence because a single juror held out for manslaughter," according to Kaplan and Saack.
That sounds like how the judicial system is supposed to work. Jurors decide based on the evidence and testimony instead of yielding to peer pressure. But in that era of anti-Semitism, anti-Catholicism and anti-immigrant feelings, Oregon voters in 1934 amended the constitution to allow 10 jurors to render a verdict in most felonies.
An Oregon newspaper editorial, among many that endorsed that amendment at the time, said, "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."
Oregon had followed Louisiana's lead, which also was rooted in prejudice. Louisiana initiated non-unanimous verdicts in 1880 because black slaves had been freed and white landowners needed low-cost labor. "Making convictions easier meant more prisoners, especially freed blacks, and more prisoners meant more labor to lease for profit," Kaplan and Sack wrote.
Oregon district attorneys supported the 1934 amendment. Today, many DAs support ending non-unanimous verdicts.
The Oregon Legislature sent the 1934 ballot measure to voters. The 2019 Legislature should do its part to rectify that wrong and ask voters the chance to do likewise.
-- The Register-Guard