UPDATE (8:31 p.m. PT) — Despite broad support, a measure that would put Oregon’s controversial jury system before voters quietly died in the Oregon Senate during the final days of the 2019 legislative session.
Oregon is the only state in the country that allows for convictions via non-unanimous juries in criminal felony cases.
Oregon House Joint Resolution 10 would have put before voters on the November 2020 ballot a proposed change to the Oregon Constitution. If passed, it would have mandated that criminal jury verdicts be unanimous, as is the case with the federal government and all other 49 states.
With the measure dead, the state’s legal community turns to the U.S. Supreme Court, who will take up non-unanimous juries during its next term.
On June 20, the Oregon House passed HJR10 almost unanimously, with 56 of the body’s 60 members voting in favor of putting the measure before voters. But on Saturday in the Senate, the bill was referred to the rules committee where it stayed until the Legislature adjourned on Sunday.
HJR10 not only had bipartisan support from lawmakers but also across the legal community. The Oregon District Attorneys Association testified during the session in support of the measure. They were joined by advocates who have worked for years to do away with the unique system.
The broad support has raised questions about why the bill failed.
Sen. Floyd Prozanski, D-Eugene, who carried the legislation in the Oregon Senate, didn’t immediately return requests for comment Monday. Senate President Peter Courtney’s office also didn’t respond for comment.
ODAA officials expressed surprise at the bill’s demise but didn’t provide additional comment Monday.
In March, the U.S. Supreme Court agreed to take up a case out of Louisiana during its next term that could address directly whether non-unanimous juries are constitutional. The Court has ruled in the past that they are.
“Some felt that we should let the case on the issue pending before the United States Supreme Court, Ramos v. Louisiana, play out before advancing a constitutional amendment to voters,” House Majority Leader Jennifer Williamson, D-Portland, said in a statement Monday. “This issue remains a top priority for me, and I will continue to fight to ensure that non-unanimous juries become a relic of Oregon’s past.”
Oregon Criminal Defense Lawyers Association’s Legislative Director Mary Sofia said Monday the high court’s decision to take up the case, Ramos v. Louisiana, had changed the timeline for some lawmakers. While the Supreme Court hasn’t yet set a date for arguments, there’s a chance it could rule by early spring, before the 2020 general election when the question would go before voters.
“I’m disappointed the legislature did not pass the bill this session because I think it is imperative that Oregon change its constitution,” Sofia said. “Given the legislature’s decision to wait, my fingers are crossed that the Supreme Court comes down the right way so that Oregonians begin getting a fair trial sooner than November 2020.”
Under current Oregon law, only 10 of 12 jurors need to agree to convict someone of a criminal felony. The exception is for murder, which requires unanimity.
“Two people could think you’re innocent and it won’t matter,” said Aliza Kaplan, a law professor at Lewis and Clark School of Law in Portland. Kaplan has written about the discriminatory nature of Oregon’s system and lobbied in support of HJR10.
Kaplan and other opponents say the system is discriminatory because it can deny defendants of color a jury of their peers and can silence the voices of jurors of color, especially in Oregon where the population is about 85% white. They also point out the history of split juries was to make it easier to convict persons of color and silence the voices of immigrants.
Supporters of split juries argue they allow for fewer hung juries and a more efficient justice system. They also note it’s easier to acquit defendants.
Until recently, Louisiana was the only other state that allowed non-unanimous juries. Last November, voters there passed a change to the state’s constitution doing away with non-unanimous juries.
“It’s really disappointing because no matter what the Supreme Court does, this was an opportunity for Oregon voters to rid our constitution of a provision that was created in discrimination and plays out in an unjust manner for jurors and defendants,” Kaplan said. “It’s something that Oregon voters should vote on regardless of what the Supreme Court does.”
Williamson said there will still be time during next year’s short session to put the issue on the 2020 ballot if lawmakers choose.
OPB’s Dirk VanderHart contributed reporting.