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Criminal Justice Reform Clinic (CJRC)

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Focus on Nonunanimous Juries in Oregon:  

CJRC files amicus brief with U.S. Supreme Court in State v. Lambert

 

Oregon and Louisiana are the only two states that allow nonunanimous jury verdicts in felony trials.  In other words, in Oregon and Louisiana, the State needs to convince only 83 percent of the jurors (10 of 12) for a felony conviction. (CJRC Amicus Brief at 25.) The outlier rule cuts short evidence-based jury deliberations, makes it easier to get a conviction, increases the chances of wrongful convictions, and locks out minority jurors whose votes are not needed.

 

The framers of the U.S. Constitution intended that the Sixth Amendment’s right to jury trial include the federally protected right to unanimous juries, but the Court has not yet made the requirement applicable to the states through the 14th Amendment. In 1797, John Adams explained: “It is the unanimity of the jury that preserves the rights of mankind.” (Lambert Petition at p. 3.) Mr. Lambert’s petition urges: “It is especially imperative to apply a guarantee of the Bill of Rights against the states when the guarantee has roots in ensuring full and equal citizenship to black [people].” (Lambert Petition at p. 26.)

 

As CJRC’s friend-of-the-court brief shows, Oregon’s nonunanimous jury statute was passed in the throes of fear and prejudice. During the decade prior to the creation of the nonunanimous jury rule, there were over 200,000 Ku Klux Klan members — nearly one in four Oregonians — in the state.  (Oregon v. Williams, Or. Cir. Ct. 2016, at p. 12.) In 1934, after a jury failed to reach a unanimous verdict to convict a Jewish man of  murdering a Protestant man, Oregon voters passed a ballot measure allowing for non-unanimous juries, effectively disregarding minority juror voices. A Morning Oregonian newspaper editorial cited “the vast immigration into America from southern and eastern Europe, of people untrained in the jury system, have combined to make the jury of twelve increasingly unwieldy and unsatisfactory.” (CJRC Amicus Brief at p. 14.)

 

Despite progress, discrimination persists in Oregon’s criminal justice system. Black Oregonians are 4.2 times more likely than whites to have their cases referred to the District Attorney and are more likely to be convicted. In fact, Oregon incarcerates black people at a rate  more than five times higher than the rate it incarcerates white people and at a higher rate than Florida, Georgia, Louisiana, and other Southern states. Nonunanimous verdicts are reached in more than 40 percent of all felony verdicts in Oregon, which means that large numbers of people would not have been convicted in a federal court or any of the other 48 states. (Amicus Brief at pp. 18, 26.) 

Because the still controversial nonunanimous jury rule is part of Oregon’s Constitution, as it was voted in by ballot measure in 1934, it can only be invalidated by the U.S. Supreme Court declaring it unconstitutional or through a ballot measure that would remove it from the State Constitution.


Criminal Justice Reform Clinic amicus curiae brief to SCOTUS in support of State v. Lambert
Louisiana’s Promise of Justice’s petition for certorari to SCOTUS in State v. Lambert
Professor Aliza Kaplan’s 2016 law review article on nonunanimous juries in Oregon
Oregon circuit court opinion in State v. Williams

Criminal Justice Reform Clinic (CJRC)

Contact Us

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    Criminal Justice Reform Clinic (CJRC) is located in Wood Hall on the Law Campus.

    Professor Aliza Kaplan
    Director
    akaplan@lclark.edu
    503-768-6721

    • Criminal Justice Reform Clinic (CJRC) Lewis & Clark Law School 10015 S.W. Terwilliger BoulevardMSC 51 Portland OR 97219