Convictions Require Unanimous Juries – Unless you live in Louisiana or Oregon

The Sixth Amendment to the United States Constitution reads:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Arguably the most important aspect of this amendment is the right to an impartial jury that delivers unanimous decisions. In 1797, John Adams explained, “It is the unanimity of the jury that preserves the rights of mankind.”

However, in Oregon and Louisiana, juries can convict most felony defendants with a 10-2 vote.  Although, Oregon still requires a unanimous vote to find defendants guilty of murder.

All other states require unanimous jury decisions in felony cases — as does the federal system, including federal courts in Louisiana and Oregon.

Some have said these systems remain vestiges of white supremacy, racism, and xenophobia in our legal system.

Non-unanimous verdicts were formally adopted as law during Louisiana’s 1898 constitutional convention, where lawmakers declared that their “mission was . . . to establish the supremacy of the white race.” Eliminating unanimity accomplished two things. First, the change would result in quick convictions that would facilitate the use of free prisoner labor as a replacement for the loss of free slave labor. Second, it ensured that African American jurors could not use their voting power to block convictions of other African Americans.

Oregon passed a ballot measure in 1934 to allow felony convictions based on a less-than-unanimous vote.  This happened as a result of increasing anti-immigrant and anti-Semitic sentiments.  In 1933, a jury failed to convict a Jewish man in the murder a Protestant man, instead handing down a verdict of manslaughter. The Morning Oregonian blamed the verdict on “the vast immigration into America from southern and eastern Europe, of people untrained in the jury system.” It then accused immigrants of making “the jury of twelve increasingly unwieldy and unsatisfactory.”

You may be asking how these laws remain when many constitutional scholars say they fly in the face of the 6th Amendment.  The Supreme Court upheld both Oregon and Louisiana's jury laws in 1972 and has declined to hear cases challenging Oregon's law in 2009 and again last week. Are there other options?  Yes. Oregon legislators still have the ability to refer a proposal to voters in the form of a ballot initiative.  How likely?  We will continue to watch and wait.


Nathan Green