Is Oregon’s law allowing a conviction without a unanimous jury verdict a vestige of the Jim Crow era in America? A report carried by Oregon Public Broadcasting suggests it may be.
Oregon is one of only two states that allow a felony conviction, except for first-degree murder, without a unanimous jury verdict. The other state is Louisiana, which is set to vote this fall on a ballot measure to scrap non-unanimous jury verdicts. Louisiana proponents of the ballot measure call it the state’s “last remaining Jim Crow law.”
OPB’s Conrad Wilson quotes Thomas Aiello, a professor of history and African-American studies at Valdosta State University: “Louisiana lawmakers adopted its system after the Civil War as part of a series of laws that enshrined white supremacy in the state…. Louisiana did so by making it easier to convict African-American defendants. Those convicts were then leased by the state to do the work that had been done by slaves.”
Oregon amended its constitution in 1934 to allow non-unanimous jury convictions. According to the Oregon Encyclopedia, the ballot measure was approved by voters following a 1933 trial involving a Portland hotel proprietor charged with murdering a Scappoose man. Eleven jurors favored conviction, but one didn’t. The jury compromised and convicted the hotel operator of manslaughter, which evidently enraged Oregonians enough to approve the non-unanimous jury provision in the Oregon Constitution with 58 percent majority.
The Oregonian editorialized, “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.”
Passage of the non-unanimous jury ballot measure in Oregon followed a decade in the 1920s when the Ku Klux Klan flourished here, reaching 35,000 members and 60 local chapters in 1923, according to the Oregon Encyclopedia. In 1922, Klansmen were elected across the state in local, county and legislative offices. The Klan provided crucial support to elect LaGrande Democrat Walter M. Pierce as governor. While Oregon Klan members targeted their venom at Catholics, they also pursued legislation to ban land ownership by “aliens.”
Klan membership faded in the 1930s, but many of its members redirected their energies through a variety of local organizations. No one can say for sure whether the Klan or its sympathizers had any significant direct role in pushing the 1934 ballot measure. Nevertheless, the timing is suspect.
Aliza Kaplan, director of the criminal justice reform clinic at the Lewis & Cark Law School, says flatly, “Both laws were based on discrimination and are relics of those times.”
The main impetus now to revisit non-unanimous jury convictions comes from the Oregon Innocence Project, which points out that it can lead to convicting innocent people. Wilson’s report cites the case of Brad Holbrook who was indicted by a grand jury for sexual abuse of a child and convicted by a non-unanimous jury. Holbrook was exonerated earlier this year after serving six years in prison.
Steve Wax, legal director of the Oregon Innocence project,” is quoted by Wilson as saying, “[Holbrook] would have died in prison without 12 jurors having said you did it. That’s wrong.”
District attorneys have expressed support for non-unanimous jury verdicts, claiming they help to avoid hung juries, court congestion and taxpayer expense. Wilson quotes Tim Colahan, executive director of the Oregon District Attorneys Association, “it clearly saves scarce resources in our criminal justice system.”
While the US Constitution guarantees everyone a jury trial, the US Supreme Court has stopped short of saying a conviction requires a unanimous jury in state criminal trials. A new challenge to that view may be rising through the Oregon Court of Appeals that highlights the challenge of minorities in a state such as Oregon to have a “jury of peers” and thus fall short of the US Constitution’s equal protection clause. Wilson says some Oregon lawmakers don’t want to wait years for a court ruling and prefer to address the issue directly.