The Oregon District Attorneys Association last week announced plans to lead a ballot campaign to abolish the state's unusual practice of allowing nonunanimous juries to decide some felony cases.
The move is long overdue, and the association's action is welcome. And, during a week when we celebrate the life and legacy of Martin Luther King Jr., it's worth remembering that Oregon's embrace of nonunanimous juries has a historical precedent that's based in racist and anti-Semitic beliefs.
In Oregon, a jury's 10-2 vote is sufficient to convict in most felony cases, although a conviction for murder or aggravated murder still requires a unanimous verdict. Oregon and Louisiana are the only two states that allow nonunanimous verdicts. Federal courts require unanimous verdicts.
This nonunanimous rule hasn't always been the case in Oregon, but in 1934, the state amended its constitution to allow juries to decide most felony cases on a 10-2 vote. Legal scholars (most notably, Aliza Kaplan of Lewis & Clark Law School, who wrote an influential piece on this topic) point to a sensational Columbia County murder case with gang overtones that paved the way for the ill-considered amendment.
That 1933 case involved a Jewish suspect, Jake Silverman, on trial for murder. One juror held out against conviction on the murder charge, and the jury eventually reached a compromise guilty verdict on a lesser charge of manslaughter. A judge sentenced Silverman to three years in prison.
The backlash was considerable. The Morning Oregonian, for example, railed against the verdict on its editorial pages, in language that was — well, not even borderline racist, but you can be the judge. Consider this excerpt from a November 1933 editorial: "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 previously had editorialized against so-called "mixed-blood" jurors.
The Legislature, then as now deeply in tune with editorial-page opinions (but, more likely, responding to public sentiment), voted to place a constitutional amendment on the May 1934 ballot to allow nonunanimous juries. The measure drew no organized opposition and was approved by 58 percent of voters.
And that's where matters have stood for more than 80 years in Oregon. There are no records of how many felony cases end in nonunanimous verdicts, but a recent Oregonian story pointed to a 2009 study that found that more than 40 percent of 662 convictions surveyed in 2007 and 2008 were nonunanimous.
Legal scholars have argued over the years that part of the reason why Oregon adopted nonunanimous verdicts in the first place was to squelch the voices of minority jurors. Certainly, the historic record suggests that was the intent, although there is some disagreement among prosecutors as to whether that's actually how matters have played out in Oregon jury rooms. Benton County District Attorney John Haroldson, for one, doesn't necessarily buy into the argument that nonunanimous juries have harmed minorities.
But Haroldson does support the move toward unanimous juries: "The unanimous jury system allows for all voices in the jury to be heard, and that's critical to a just and transparent criminal justice system," he said.
Still, some observers were surprised that an association of state prosecutors was planning to push the ballot measure for unanimous juries; such a move could well increase the number of hung juries.
But Multnomah County District Attorney Rod Underhill, who backs the move, was clear: "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," he told The Oregonian.
And speaking of The Oregonian: The paper's opinion page last year recanted its editorial stance from 1933. It's time for the rest of Oregon to follow suit.