A year ago, we wrote that Oregon was one of only two states in the country that allowed criminal defendants to be convicted with a less-than-unanimous jury verdict. Now we are the only one. On Tuesday, Louisiana voters approved an amendment to that state’s constitution requiring unanimous verdicts in all criminal trials.
Louisiana’s law was a legacy of the Jim Crow era. Louisiana changed its constitution to permit non-unanimous verdicts in 1898, after the 14th Amendment permitted black Americans to serve on juries. By allowing non-unanimous verdicts, Louisiana saw to it that one or two black jurors could be overruled by a majority of white jurors. The amendment was adopted at the Constitutional Convention of the state of Louisiana, which was held, according to the journal of its proceedings, to “establish the supremacy of the white race.”
Oregon changed its constitution much later, but also for reasons rooted in bigotry. A Jewish man was accused of killing a Protestant man in Portland in 1934. The jury could not reach a unanimous verdict on second-degree murder and convicted the defendant of manslaughter instead. The public outcry — fueled by editorials in the Morning Oregonian — led the Legislature one month later to propose a constitutional amendment allowing non-unanimous verdicts for everything except first-degree murder. The voters approved.
A unanimous jury verdict has been presumed to be the standard for criminal conviction since before the U.S. Constitution was written. The Sixth Amendment guarantees the right to a trial by jury, although it does not mention a unanimous verdict. But the U.S. Supreme Court has ruled that a unanimous verdict is included in that guarantee — in federal trials. State trials, the court has held, are a different matter, and the court has declined to impose that constitutional requirement on the states based on the equal protection clause of the 14th Amendment, although it has done so for other rights guaranteed in the U.S. Constitution, including the Second Amendment right to keep and bear arms.
Besides the stain of bigotry, non-unanimous verdicts give an unfair advantage to prosecutors in criminal trials. A 12-member jury that takes a poll at the beginning of deliberations and votes 10-2 for conviction need not spend any effort to persuade the two dissenters to change their votes, because their votes are not needed.
Lawmakers in Salem have taken notice of Louisiana’s election result, and legislative leaders have vowed to pass a statutory change right away. House Majority Leader Jennifer Williamson has said Democrats will push two bills in the 2019 session, one to change the law and the other to ask voters to overturn the constitutional amendment from 1934.
The voters of Louisiana on Tuesday voted 64 percent to 35 percent to bring their justice system out of the prejudiced past. It’s high time Oregonians did the same.