If you took a break from the news over the holidays, there’s a good chance you missed a ruling by the Oregon Supreme Court that all state prisoners convicted by non-unanimous juries are entitled to have their cases reconsidered, writes Jamiles Lartey for The Marshall Project. In practical terms, it means that hundreds of felony convictions are now invalid, and those cases will either need to be retried, dropped or resolved with a new plea deal.
It’s a big win for progressive advocates, and comes
just a few months after
the Louisiana Supreme Court reached the opposite conclusion in a
similar case this past fall.
For decades, the two states were the only ones that
allowed for a defendant to be found guilty of certain crimes, even if one or
two of the 12 jurors in the trial voted not guilty. First adopted by Louisiana
in 1898, these non-unanimous verdicts were explicitly
designed to rig the legal system against Black defendants. Since the
state was constitutionally barred from excluding Black people from juries
outright, the rule ensured that a mostly White jury would be able to convict a
Black defendant of a crime over the objections of one, two, or, at that time,
even three Black jurors voting to acquit. (Check out this
compelling documentary from Al Jazeera’s Fault Lines for a video about
the Jim Crow-era practice.)
Oregon adopted a similar rule in 1933, after a
Jewish immigrant was acquitted of a high profile murder (but convicted of
manslaughter) due to a single holdout juror. In an editorial that year, The
Morning Oregonian opined that “vast immigration into America from
southern and eastern Europe… have combined to make the jury of twelve
increasingly unwieldy and unsatisfactory.” In the ruling last week, Justice Pro
Tempore Richard Baldwin added a concurring
opinion to the majority ruling, solely to elaborate on the state’s “history
of racial exclusion.”
Despite the undeniable white supremacist and
nativist roots of these laws, they survived multiple legal challenges and
endured for nearly 90 years in Oregon, and for 120 in Louisiana. Voters
in Louisiana finally abolished non-unanimous juries in 2018. Two years
later, the U.S. Supreme Court declared them unconstitutional in Ramos v.
Louisiana, which also brought the practice to an end in Oregon.
At that time, the justices did not weigh in on whether
the Ramos ruling should also prompt a case review for people behind bars who
had already exhausted their appeals. The following year, the
court’s conservative majority ruled that the decision did not
automatically extend retroactively.
Legislative
efforts to sort these questions in both states failed
last year, before their respective Supreme Courts weighed in. Pushback
largely came from elected
prosecutors, along with some victims’ advocacy groups, who argued
that undoing
convictions would retraumatize victims.
One Oregonian, a relative of two people who were
murdered, described
it as a tension between “two unthinkable options: forcing victims to
relive the most traumatic events of their lives, or allowing hundreds of people
to remain in prison despite unconstitutional convictions.”
In Louisiana, the proposed law would have allowed a
five-member review panel to offer parole to people convicted by a non-unanimous
jury. Ironically, talks collapsed — at least in part — because of disagreement
on whether the panel’s decision would need to be unanimous or not. Some of the
advocates who have sought to free people convicted by non-unanimous juries are
now hoping that the Oregon decision will
push Louisiana lawmakers to pick up the question again this year.
Relief for people who’ve been convicted by
non-unanimous juries is not as simple as getting a supreme court ruling in
their favor. In hundreds of Louisiana cases, there is no
record whatsoever of how jurors voted, making it difficult to sort out
who was affected by these unconstitutional verdicts. Civil rights lawyers have
routinely resorted to hiring investigators to track down jurors individually
and ask them if they remembered details of the deliberations. In 2018, one
woman described to our colleague Maurice Chammah her regret after she
voted to convict during a deliberation where two jurors voted no. The convicted
man, Kia Stewart, was
ultimately freed after nearly 10 years in prison behind a wrongful
conviction.
It’s also virtually impossible to unwind all the
downstream effects of non-unanimous juries. Aliza Kaplan, director of the
Criminal Justice Reform Clinic at Lewis & Clark Law School in Oregon, said
she’s heard countless stories of people “who took plea deals because their
lawyer said ‘We have non-unanimous juries, and you're a Black man — you'll
never win.’”
Kaplan said it will be extremely difficult for
people incarcerated under circumstances like that to get out of prison.
Release from prison isn’t the end of the story.
Terrence Hayes spent nearly 13 years incarcerated on a 10-2 jury conviction in
Oregon and wrote
about the collateral impact, even now that he’s free. “I am still bound by
the chains of an unconstitutional conviction on my record,” Hayes wrote in
2021. “This impacts my employment, housing opportunities, my reputation and so
many other aspects of my life.”
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