This week, the Oregon Legislature effectively decided convictions by nonunanimous juries should remain in place for older criminal cases.

In 2020, the U.S. Supreme Court ruled nonunanimous juries unconstitutional. The court’s decision in Ramos v. Louisiana also noted Oregon’s jury system for more than 80 years was rooted in racism and discrimination.

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In a separate ruling last year, the justices left it up to Oregon to determine whether to apply the ruling retroactively, meaning people convicted by nonunanimous juries could have their cases re-examined.

The amended version of SB 1511, which did not reach the Senate floor for a vote, would’ve applied only to people in custody convicted by a jury of 10-2 or 11-1, and whose victims were not minors. The legislation would have vacated sentences for those who could prove a nonunanimous jury conviction. From there, the case would have returned to the county of origin, where district attorneys would determine whether to retry or resolve the case another way. The bill earmarked $6 million for prosecutors to bolster services for crime victims affected by the legislation.

File photo of the Oregon State Capitol building in Salem, May 18, 2021. A bill aimed at some past nonunanimous jury decisions did not advance in the 2022 short legislative session.

File photo of the Oregon State Capitol building in Salem, May 18, 2021. A bill aimed at some past nonunanimous jury decisions did not advance in the 2022 short legislative session.

Kristyna Wentz-Graff / OPB

Democrats declined to advance the bill after it passed the Senate Judiciary Committee last month along party lines. That came after district attorneys and crime victims significantly pushed back on the bill during public testimony.

“By choosing not to support relief for people convicted by nonunanimous juries, Oregon’s Democratic leadership has chosen racism and xenophobia over fairness and the rights of Oregonians,” said Aliza Kaplan, a professor at Lewis and Clark Law School in Portland and backer of SB 1511.

Oregon voters approved nonunanimous juries in 1934, at a time when the Ku Klux Klan was popular in the state and anti-immigrant sentiment was high. Kaplan’s research on nonunanimous juries found the tipping point followed the acquittal of a Jewish man tried for murder who all but one juror wanted to convict.

“It is beyond disappointing that conservative U.S. Supreme Court Justices Brett Kavanaugh and Neil Gorsuch handled this issue better than our Democratic attorney general, legislature and district attorney association, who all claim to care about ending racism and protecting people’s constitutional rights, yet they all failed on this important and historic matter,” Kaplan said.

Two people wearing suits and masks talk inside the Oregon state Capitol building.

Sen. Floyd Prozanski, D-Eugene, confers with a colleague on the Senate floor, May 18, 2021. He was a backer of SB 1511.

Kristyna Wentz-Graff / OPB

Sen. Floyd Prozanski, D-Eugene, chairs the Senate Judiciary Committee and sponsored the legislation. He said he had 17 of 18 Democrats in the Senate ready to vote for the measure, enough to carry it in the chamber.

“It’s hard for me to say what and why the House leadership took the position they took,” Prozanski told OPB. “The overwhelming majority of my Democratic caucus agreed that when you have someone’s constitutional rights that have been infringed, and denied them their liberty, as the court said, they should have the right to actually be retried and to determine whether they are guilty beyond a reasonable doubt.”

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Rep. Dan Rayfield, D-Corvallis, on the House Chamber floor at the Oregon State Capitol, May 18, 2021 in Salem, Ore. While SB 1511 did not advance in the short legislative session, Rayfield believes a similar proposal could find more support from lawmakers in the future.

Rep. Dan Rayfield, D-Corvallis, on the House Chamber floor at the Oregon State Capitol, May 18, 2021 in Salem, Ore. While SB 1511 did not advance in the short legislative session, Rayfield believes a similar proposal could find more support from lawmakers in the future.

Kristyna Wentz-Graff / OPB

House Speaker Dan Rayfield, D-Corvallis, said the bill tackled an important and complex issue. In a statement, he said it should be a priority for next year’s session.

“I have long supported the review of criminal cases for Oregonians who were unconstitutionally convicted by nonunanimous juries,” Rayfield said. “I can’t speak to specific concerns any individual members may have had about this bill. I know there was significant opposition testimony on the record from crime victims with concerns about this bill.”

Rep. Tawna Sanchez, D-Portland, who co-chairs the Joint Committee on Ways and Means where the bill died, said Prozanski worked to narrow the scope of the bill “given the extensive concerns his committee heard from crime victims.”

“I’m disappointed we weren’t able to get to a broader consensus on this bill to move forward this session,” Sanchez said in a statement. “The decades-long use of nonunamious juries was rooted in racism and was a disgrace for the state.”

The women of the Oregon Legislature's BIPOC caucus pose for a photo on the final day of the 2021 session. From left: Rep. Andrea Valderrama (D-East Portland), Rep. Andrea Salinas (D-Lake Oswego), Rep. Wlnsvey Campos (D-Aloha), Rep. Tawna Sanchez (D-North/NE Portland), Rep. Khanh Pham (D-East Portland), Rep. Teresa Alonso-Leon (D-Woodburn) and Rep. Janelle Bynum (D-Happy Valley). Sanchez co-chairs the Joint Committee on Ways and Means where SB 1511 died.

The women of the Oregon Legislature's BIPOC caucus pose for a photo on the final day of the 2021 session. From left: Rep. Andrea Valderrama (D-East Portland), Rep. Andrea Salinas (D-Lake Oswego), Rep. Wlnsvey Campos (D-Aloha), Rep. Tawna Sanchez (D-North/NE Portland), Rep. Khanh Pham (D-East Portland), Rep. Teresa Alonso-Leon (D-Woodburn) and Rep. Janelle Bynum (D-Happy Valley). Sanchez co-chairs the Joint Committee on Ways and Means where SB 1511 died.

Oregon House Democrats / Courtesy of Oregon House Democratic Caucus

Oregon’s court records are thin on historical data about nonunanimous juries.

A project based at Lewis and Clark Law School found some 250 people convicted by a nonunanimous jury. Of those, 18% are Black, despite the state’s population being only 2.2% Black. Latino, Hispanic and Native Americans are also overrepresented among people convicted by nonunanimous juries, according to the school’s data.

The only other state with nonunanimous juries was Louisiana, where they were considered a Jim Crow law designed to make it easier to convict Black defendants so white landowners could lease them as prison labor.

Opponents have long noted nonunanimous juries allowed for convictions where there was doubt, and also created disparities. Proponents have argued nonunanimous juries created a more efficient justice system with fewer hung juries.

With Senate Bill 1511 dead, criminal defendants found guilty by a nonunanimous jury will remain in custody and marked a felon. For opponents of the bill, it’s end means victims won’t face the prospect of another trial.

The Oregon District Attorney’s Association said in a statement it supported lawmakers’ decision to hold back the bill.

“This allows the Oregon Supreme Court to weigh in on whether or not Oregon should apply the Ramos ruling retroactively and ask our Courts, defendants and crime victims to retry cases,” ODAA’s executive director Michael Wu said in a statement.

In May, the state’s Supreme Court is set to hear arguments on whether to retroactively apply the Ramos ruling. It’s not clear if the Oregon Supreme Court will issue its ruling prior to the start of next year’s legislative session.

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