UPDATE (Jan. 10, 7:45 p.m. PST) — The Oregon District Attorneys Association plans to roll out a campaign in the coming weeks to back a ballot measure that would abolish non-unanimous juries from the state’s constitution.
“We want to get it right,” said Multnomah County District Attorney Rod Underhill on Wednesday. “We want people to both actually believe that the system is fair and balanced and have perceptions of that fair and balance.”
The fact that prosecutors are backing the initiative surprised many justice reform advocates Wednesday.
News of the campaign to change the jury rule leaked after the campaign’s web developer mistakenly made its website live. It’s since been taken down. But it was spotted by a journalist with The Marshall Project and first reported locally by the Willamette Week.
Oregon is one of two states that allows juries to convict defendants without unanimity in felony cases, the exception being in murder or aggravated murder cases, which in Oregon still require a unanimous jury.
Louisiana also allows for non-unanimous juries. But 48 other states and the federal government all require unanimity among jurors in felony criminal cases.
Opponents of Oregon’s split jury system have long argued it’s rooted in racism and discrimination because it denies defendants a jury of their peers, especially for defendants of color in a state where most juries tend to be majority, or even entirely, white. The state’s current system also allows for convictions when jurors have doubt.
Proponents of Oregon’s 10-2 jury system have argued in the past it allows for fewer hung juries and greater efficiencies in the criminal justice system.
Underhill said at this point “most” but not all of Oregon’s 36 elected district attorneys are on board.
He said the measure would likely be targeted for the 2020 ballot.
“We decided we want to play not just a voice of support, but a leadership role,” he said.
The proposed ballot measure would repeal a provision in the state’s constitution that Oregon voters passed in 1934.
It was originally designed to prevent European immigrants from having a say on juries and passed during a time when the Ku Klux Klan was popular and still politically powerful in Oregon.
David Rogers, executive director of the American Civil Liberties Union of Oregon, said the move by the DAs is surprising “for so many reasons.”
“Underhill’s own staff in roughly the past year has in court pushed back on our arguments about why this law is so shameful, steeped in prejudice and potentially unconstitutional,” Rogers said. “It’s been odd that there’s just a significant about-face.”
Rogers said that during a hearing in Salem in November about non-unanimous juries, the DAs Association made no indication they were prepared to make such a change. And if they were to support a change, it would only happen after careful study.
Underhill acknowledged in the past he’s taken a position to study the effect of split verdicts more and to collect data about whether it harms defendants of color.
“(Oregon district attorneys) decided that we don’t want to do that,” Underhill said. “If our communities don’t have confidence in the perception of fairness and balance, that’s enough for us.”
No agency in Oregon tracks non-unanimous criminal convictions.
A report by the state’s Office of Public Defense Services looked at 662 cases from 2007 and 2008 that reached the verdict stage and were appealed. The report noted the small sample size, but found that non-unanimous juries occurred in 40 percent of those cases.
Despite his skepticism, Rogers said the new position by Underhill and his colleagues is a welcome change.
“It’s hard to understand what this newfound enlightenment, where it’s coming from,” he said. “I’m glad that the district attorneys are on board with the change because advocates have been asking for it for awhile now.”
Other advocates echoed Rogers.
“I’m definitely encouraged and shocked like a lot of people,” said Aliza Kaplan, a professor at Lewis and Clark Law School in Portland, where she directs the Criminal Justice Reform Clinic.
Kaplan has long studied the issue and advocated for reform to Oregon’s split-jury system.
She said she wants to see ballot language before embracing the campaign, but is encouraged by the movement.
“If it’s a clean repeal, then that would be amazing,” Kaplan said.
Underhill said he and many other elected DAs want to change the state’s jury system.
“We want to embrace what most, nearly all the country is doing and let’s have unanimity for guilt and innocence,” Underhill said.
Advocates said they don’t have to wait for a campaign.
“Any DA that feels strongly about getting rid of non-unanimous juries, especially because of their history, if that’s what motivating them, could do that right now,” Kaplan said. “DAs have discretion on whether or not to use non-unanimous juries. So, Rod (Underhill) or whoever could say, ‘I’m not going to use them in the short term until we figure this out.’”
Still, Kaplan agrees repealing the measure from the state’s constitution is a necessary long-term answer.