According to TV shows, all criminal convictions require unanimous guilty verdicts from all 12 jurors, right? Actually …. no. As of 2019 Oregon is the lone holdout.
In 49 U.S. states and the federal court system, a 12-0 guilty vote is needed to convict in criminal court. But Oregon permits convictions (for felonies other than murder) on a 10-2 or 11-1 vote of the jury.
The Oregon legislature is considering a constitutional amendment that would require a unanimous jury for a conviction. The voters would also need to approve it via referendum.
Some district attorneys oppose requiring unanimous verdicts in Oregon, arguing that its main effect would be to increase hung juries, requiring the state to spend more on retrials and forcing victims of crime to relive their traumas a second time.
Many supporters of unanimous verdicts argue that nonunanimous juries were permitted for racist reasons. They claim that in nonunanimous juries minority viewpoints on the jury are more easily ignored, which can lead to more wrongful convictions.
One African-American defendant in Oregon recently argued that because only about 2 percent of Oregonians are black, nonunanimous juries silence African-American jurors without actually excluding them.
Oregon’s history appears to lend some credence to that theory. Did you know that In 1844, all black people were ordered to get out of what was then Oregon Country? And when Oregon entered the Union in 1859 — it did so as a “whites-only” state. The original state constitution banned slavery, but also excluded nonwhites from living there.
Oregon adopted its nonunanimous jury system in 1934 after the high-profile trial of Jacob Silverman for the murder of James Walker. Silverman was Jewish. In the 1930s, waves of Jewish and Catholic immigrants arrived in the United States. The immigration led to a resurgence in Ku Klux Klan activity, including in Oregon. One of Silverman’s 12 jurors held out for his innocence, and the jury returned a compromise verdict of manslaughter.
In response to the Silverman verdict, Oregon’s largest newspaper wrote that “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.” The newspaper also took aim at ethnic jurors, bemoaning “mixed-blood” jurors and lamented the role that some immigrants played on juries, questioning their “sense of responsibility” and “views on crime and punishment.”
Oregon may be the last state with nonunanimous criminal juries, but Louisiana only abolished them via referendum in 2018. According to Innocence Project New Orleans, 13 of the 57 Louisianans who have been exonerated—and the only person exonerated by the Oregon Innocence Project—were convicted by nonunanimous juries.
Are nonunanimous state juries constitutional? In 1972 the U.S. Supreme Court decided to hear Apodaca v. Oregon – the case of three men convicted of felonies by non-unanimous juries in Oregon. A four-justice plurality held that there is no constitutional right to a unanimous jury verdict in state-level criminal cases and that Oregon’s law doesn’t violate due process.
What do you think? Should all criminal convictions in all states require unanimous juries? Or is that bar simply too high and too difficult, allowing the guilty to go unpunished?