Our view | Good riddance to Oregon’s nonunanimous jury law
Published 5:00 am Friday, April 24, 2020
- The U.S. Supreme Court ruled 6-3 Monday that the U.S. Constitution requires unanimous jury verdicts in state criminal courts. The move ends Oregon’s history of using nonunanimous juries to find people guilty of crimes other than murder.
Oregon’s law that allowed nonunanimous juries to convict for felony charges besides murder was unjust and born, at least in part, of bigotry. It deserved to go.
The U.S. Supreme Court ruled Monday that the Sixth Amendment establishes a right to a unanimous jury in both federal and state courts. Oregon is the only state left in the country that did not require unanimous verdicts. The court’s ruling will mean some convictions may be overturned and some defendants may be retried. But that’s a necessary cost.
The requirement for unanimous juries goes back a long way — to 1367 in England when a court rejected an 11-1 guilty vote. That legal tradition later moved to its colonies. The U.S. system of justice was designed to protect people from wrongful conviction and from state power. That’s why convictions require proof beyond a reasonable doubt. It’s why the jury system exists and why jurors are selected from people of different backgrounds and experiences. And it’s why juries have been required to produce unanimous verdicts.
Oregon’s state law allowing nonunanimous juries was conceived with more than a hint of xenophobia. The Oregonian recounted what happened in a 2017 article. Jake Silverman, a Jewish hotel owner in Portland, was charged in 1933 with the murder of one of two white Protestants found dead. The Sunday Oregonian‘s coverage of the trial is full of colorful descriptions — such as Portland’s criminal element “meted out its own form of punishment Friday night when it took two of its own members for ‘a ride in the country’ and left their lifeless bodies besides the lonely and mountainous Dutch Canyon road.”
Eleven of the 12 jurors were ready to convict Silverman of second-degree murder. One juror refused. The jury compromised on manslaughter.
Does that mean the justice system failed? Not necessarily. But The Morning Oregonian fumed at the lone juror and the verdict. “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 12 increasingly unwieldy and unsatisfactory,” it wrote on Nov. 25, 1933. The Oregon Legislature followed up by putting a measure on the ballot to allow a 10-2 verdict to convict in felony cases that were not murders. The Silverman case was part of the information used as an argument to support the change in the voter’s pamphlet. Oregon voters passed the law easily in 1934.
Even if you are unmoved by the history of the Oregon law, the verdict Monday by the U.S. Supreme Court was relatively straightforward. Unanimous verdicts are required in federal court. They should also be required in state court. When the Sixth Amendment was adopted there was a long history of the right to a unanimous jury. Monday’s court decision was that the right to a “trial by an impartial jury” included the right to a unanimous jury.
The complication in that reasoning was the Supreme Court’s 1972 decision in Apodaca v. Oregon. It allowed nonunanimous juries in state courts and the court generally follows precedent. But a bad precedent is not worth following. The court did not rigidly follow any precedent after the Apodaca decision, anyway. And as Justice Sonia Sotomayor wrote, the Apodaca decision actually conflicts with other precedents, such as the Bill of Rights applies to the states.
Whatever you think about the debate over the law, the debate is over. Oregon’s law was not good enough.