Non-Unanimous Jury Convictions and Oregon District Attorneys

Yesterday, reporters discovered that a website was being built by Multnomah County District Attorney (DA) Rod Underhill and, perhaps, the Oregon District Attorneys Association (ODAA). The website was quickly taken down, but the mistake forced Underhill to go on the record and prematurely reveal plans for a potential ballot measure to revise the part of Oregon’s Constitution that allows for non-unanimous jury convictions.

Only two states allow for non-unanimous jury convictions, Oregon and Louisiana. The laws were designed to minimize the influence of minority jurors. But it’s not just that the history of these laws is steeped in bigotry, these laws can also exacerbate racial disparities in the criminal justice system today. Professor Aliza Kaplan (Lewis and Clark School of Law) has raised the visibility of Oregon’s law and its appalling history with her influential article published in the Oregon Law Review last year.

Non-unanimous jury convictions also fly in the face of a core premise of justice in the United States: prosecutors must prove guilt beyond a reasonable doubt. When two jurors have significant doubt, the state has not successfully made its case. There is a reason why all but two states require unanimous juries to convict people; it’s the only legitimate bar for decisions that can take away liberty and freedom. It is long overdue for this shameful and racist law in Oregon to change.

The news that DA Underhill and the ODAA are positioning themselves not only to support, but to lead an effort to change this terrible law came as a shock to many criminal justice reformers. The Willamette Week quotes Underhill yesterday as saying, “If we have laws that are based on a foundation of racism, bias and prejudice, we need to look at them closely—whether they need to be changed or whether they need to be repealed." This is an abrupt reversal of longstanding defense of this law by district attorneys in the state. In fact, we only know of one Oregon district attorney until this point who has given unequivocal public support for a change on the law: Deschutes County DA John Hummel.

It was only just over one year ago, when DA Underhill’s office fought against the idea that non-unanimous juries were unfair in court. In that case, the ACLU of Oregon and the Oregon Justice Resource Center filed friend-of-the-court briefs challenging non-unanimous jury convictions as unconstitutional by violating the Equal Protection Clause of the federal Constitution. And just last month, our DA accountability campaign reached out to all 36 DAs asking for their positions on several key policy issues, including on non-unanimous jury convictions. So far, the responses we have received from DAs have primarily been notes denouncing our campaign and rebuttals to the idea that they needed to be forthcoming about their policy positions. As for DA Underhill, the strongest public statement from him on the issue until now was to the Oregonian Editorial Board last September, where he was quoted as saying it was "time for a thoughtful review of this law.” That was progress, but not exactly a ringing endorsement for tangible change.

So what is really going on here? Maybe DAs no longer want to be on the wrong side of racial justice. If that is true, it would be a new and fantastic development for Oregon. But it is difficult not to be a little skeptical of their motivations considering that DAs have historically and recently opposed many efforts to tackle institutional racism in the criminal justice system and that they have been planning these efforts in secret.

Because this story broke before the DAs were ready to go public, the details of their actual proposal for change do not yet exist. For a clue, we can look back to ODAA’s executive director Tim Colahan’s testimony to the legislature last November. At that time, he suggested any DA support of change would be contingent on a full repeal of the law that allows for non-unanimous juries. A full repeal would not only remove the non-unanimous jury provision, but it would also remove a defendant’s ability to receive a trial by judge upon request and over objections from the DA, a step backward for justice. Is this really a new found enlightenment or a preemptive strike by DAs to control the reform conversation they have largely avoided until now?

What’s most interesting about this change of heart from the DAs is that they don’t need to change the law to change how this law is implemented. Each DA can adopt a policy right now that requires their prosecutors ask judges to deliver jury instructions asking for a unanimous verdict. In my opinion, that will be the real test of how earnest district attorneys are in their support for changing non-unanimous jury convictions. Are they willing to change their policies and practices right now?

For now, advocates and voters everywhere who have been calling for the need for more engagement and accountability with elected district attorneys should give yourselves a pat on the back. One thing is clear, grassroots pressure on DAs has been ramping up in Oregon and around the country. This recent turn of events is indicative of what can happen with the increased political pressure. Let’s keep working.