Oregon takes reins in justice reform over non-unanimous criminal verdicts

The judge's chair (C), the witness stand (R) and stenographer's desk (front) are seen. Picture taken February 3, 2012. REUTERS/Chip East
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(Reuters) - Oregon’s top court decided on Dec. 30 that a recent U.S. Supreme Court decision requiring unanimous verdicts for serious crimes applies retroactively to people who were already convicted when the ruling came down.

The Oregon Supreme Court’s milestone decision voids several hundred felony convictions reached via non-unanimous jury verdicts -- a legal oddity and vestige of Jim Crow-era polices to uphold white supremacy. Those people will now have to be retried or will negotiate a resolution with prosecutors.

The U.S. Supreme Court held that split-jury verdicts were unconstitutional in a 2020 case called Ramos v. Louisiana, acknowledging that the practice originated to enable white Americans to override the views of minorities in determining guilt or innocence.

Oregon approved the practice in 1934 because the public was outraged that a jury had convicted a Jewish man of manslaughter rather than murder in a sensationalized trial over the death of a protestant man. Louisiana, the one other state that had permitted non-unanimous jury verdicts, carefully crafted its rule based on racial demographics to ensure that Black jurors’ votes would be rendered meaningless.

Although the U.S. Supreme Court's 2020 decision in Ramos had found non-unanimous verdict laws to be unconstitutional, the court in 2021 curtailed that ruling. The justices said in a follow-up case that there was no retroactivity on the federal level -- non-unanimous verdicts could only be challenged in open and future criminal cases.

That decision left potentially hundreds who were unlawfully convicted without recourse, although the court also said that states remained free to decide the issue of retroactivity for themselves.

The Oregon court prudently went further on Dec. 30, deploying its substantial judicial powers to actually remedy past injustices, in a case where the effects are obviously enduring.

Aliza Kaplan, a professor at Lewis & Clark Law School, applauded the ruling, saying the Oregon high court did its best to “right a wrong.” Kaplan heads a clinic that filed a brief in favor of retroactivity.

Oregon Attorney General Ellen Rosenblum has praised the court's Dec. 30 ruling, calling it a "critical" step in “undoing a rule that should never have been enacted.” A spokesperson told me on Jan. 4 that Rosenblum is already working to ensure implementation.

But Rosenblum's offices actually argued for years against applying the unanimous jury requirement retroactively, at the U.S. Supreme Court as well as in the Oregon high court case decided last week. In fact, the state AG's office urged the U.S. Supreme Court in 2019 not to outlaw non-unanimous verdicts in the first place.

Rosenblum didn’t respond to my questions about whether she had been inconsistent or switched her positions on the issues in the disputes.

Oregon state prosecutors relied on familiar but largely unsupportable arguments that other prosecutors and many courts (including the U.S. Supreme Court) routinely use to resist overturning wrongful convictions.

They raised the specter of administrative burden -- that courts would be overwhelmed by a flood of appeals. They also pointed to the principle of “finality," or the government's interest in closing cases and maintaining respect for the authority of those court decisions. In addition, prosecutors referenced reliance interests, or the fact that officials relied on established practices and previous precedent finding non-unanimous verdicts permissible.

Historically, prosecutors have produced scant empirical evidence to support those broad policy-based arguments against post-conviction relief.

The Oregon ruling could lead potentially to several hundred cases being reviewed, according to Rosenblum's own estimates -- hardly a flood. Moreover, courts have sometimes recognized that prosecutors' administrative concerns are easily overblown. (The "flood of litigation" objection is particularly useful because it’s basically impossible to disprove).

Oklahoma raised similar concerns in a 2020 case about Native American jurisdiction, for example, arguing that thousands would challenge state-court convictions if the U.S. Supreme Court ruled that certain parts of the state were Native American reservation land. A majority of the justices concluded those arguments were both speculative and unconvincing.

Past experience also shows that courts, prosecutors and defense attorneys have handled major, retroactive changes in criminal law quite smoothly, reviewing and resolving thousands of prior convictions, often with little new litigation, as state and federal defenders in Oregon pointed out in a brief in the 2021 Supreme Court case about retroactivity.

The U.S. Sentencing Commission implemented new guidelines for crack cocaine offenses in 2007, 2010 and 2014 -- all retroactive, for example. Federal courts considered 85,000 filings over the last 12 years seeking review of old cases based on those changes, according to the defenders' brief. Yet there has been no extraordinary disruption.

Experience also shows that the finality argument is hollow, especially in the wrongful convictions context.

For one, it’s increasingly common for governments to overturn verdicts and even release the wrongfully convicted, sometimes en masse. But there is no indication that the public perceives those moves as anarchy, rather than decisions that actually improve faith in the integrity of government.

For example, New York district attorneys have been reviewing several thousand questionable convictions on an ongoing basis, The New York Times reported in November 2022. And the Manhattan DA recently sought dismissal of 188 convictions going back to 2001.

Ryan O'Connor, a Portland attorney who represented the plaintiff in the Oregon case, told me the arguments tend to get raised "in the abstract."

Finality and the related "concepts are important in terms of how our court system has been structured, but in these cases, I think they're far outweighed by the need for justice and respect for individual rights," O'Connor said.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com