On October 7, 2019, the United State Supreme Court heard oral arguments in Ramos v. Louisiana, a case which posed an important question: do the Sixth and Fourteenth Amendments of the United States Constitution require a jury verdict in a state criminal trial to be unanimous to support a conviction?
Louisiana voters amended their State Constitution in 2018, leaving us in Oregon the lone and ignominious outliers that still allow individual liberty to be stripped from somebody without a cross-section of the community—the jury—uniformly agreeing that criminal punishment is appropriate. Our now unique legal and moral shortcoming has a dark past. Nonunanimous juries became the law of the land in Oregon in 1934 when a public outcry arose because a Jewish man accused of murdering a Protestant was convicted of manslaughter after a jury could not find consensus to convict him of the more serious charge of second degree murder. In other words, the practice was adopted to ensure minority jurors could not scuttle a racist verdict.
The practical operation of rules allowing nonunanimous verdicts have expectedly bigoted results. A study by The Advocate found that, in Louisiana, 40% of convictions are nonunanimous. That number goes up to 43% when a defendant is African American, and drops to 33% when a defendant is white (those numbers appear not to pencil out at first glance because the majority of defendants in Louisiana are African American). Nobody familiar with the practice argues that it does not lead to racist outcomes. Instead, they focus, as did Oregon’s Attorney General in her amicus brief, on the logistical difficulty of dealing with the thousands of inmates unfairly convicted by split juries.
Efforts have been made in Oregon to reverse this shameful rule, but to no avail. And when it became apparent that the United States Supreme Court was planning to weigh in on the issue, it certainly appears most of our politicians were happy enough to leave the heavy lifting to the Court.
Oral argument at the Supreme Court seemed promising. Even the Court’s conservative justices appeared deeply troubled by the rule’s racist past and unfair present application. Justice Kavanaugh was quick to explicitly point out to the advocate defending nonunanimous juries that the rule is rooted in racism, a sign that he stands prepared to strike it down. His colleagues appeared to agree with him. Justice Alito offered the only facile defense of the rule, suggesting the tradition of stare decisis, or respect for precedent, may require continuing to allow the unjust rule.
In the face of Justice Alito’s suggestion, we should remember Justice Holmes’ sage words: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule persists from blind imitation of the past.” Oregon’s law allowing nonunanimous juries was racist and unjust when it was instituted and has become more so as it ages. Thank goodness the Supreme Court seems prepared to scrub this moral stain from our State’s criminal justice system.