Oregon Supreme Court Strikes Down Nonunanimous Jury Verdicts


The Oregon Supreme Court last month invalidated hundreds of felony convictions obtained under a 1934 law designed to exclude people of color from meaningful participation in the justice system by allowing nonunanimous jury verdicts.

The December 30 decision in Watkins v. Ackley retroactively applies the U.S. Supreme Court’s 2020 ruling in Ramos v. Louisiana, which held that the Sixth Amendment requires unanimous jury verdicts in felony cases.

Ramos vacated more than 470 convictions in Oregon, the only state besides Louisiana that allowed felony convictions based on nonunanimous jury verdicts. But the Supreme Court concluded in 2021 that Ramos is not retroactively applicable in federal habeas proceedings, leaving it to the states to choose whether to apply Ramos to older cases.

Louisiana’s supreme court decided last year not to apply Ramos retroactively, denying new trials to as many as 1,500 people convicted by split juries.

After a bill that would have applied Ramos retroactively died in committee, the Oregon Supreme Court took up the question and reached the opposite conclusion in Watkins, holding that “convicting the defendant on anything less than a unanimous guilty verdict violates our sense of what is fundamentally fair in a criminal proceeding.”

Requiring all 12 jurors to find guilt beyond a reasonable doubt is critical to a fair trial because it reduces the risk of convicting an innocent person, the court wrote.

And jury unanimity is especially important as a safeguard against racial bias. Without it, the court said, “the majority can simply ignore the views of the minority” and “force a decision that ultimately is based on prejudice.”

The decision invalidates the split-verdict convictions of about 300 Oregonians whose appeals were final before Ramos was decided.

But as Lewis & Clark law professor Aliza Kaplan told The Oregonian, most incarcerated people do not know if they were convicted by a nonunanimous verdict because no one polled their jury and the state does not keep track of all nonunanimous verdicts. As a result, some incarcerated people may be unable to have their split-verdict convictions voided under the new ruling.

Oregon’s History of Racial Exclusion

The U.S. Supreme Court acknowledged in Ramos that Oregon voters’ adoption of a constitutional amendment in 1934 that permitted conviction by a nonunanimous jury can “be traced to the rise of the Ku Klux Klan and efforts to dilute the influence of racial and ethnic and religious minorities on Oregon juries.”

Indeed, as the Watkins court explained,

Oregon discarded the common-law unanimous guilty verdict requirement—a requirement that Oregon courts had recognized and applied in criminal trials from the time Oregon’s Constitution went into effect in 1859 until the adoption of the 1934 amendment—precisely because it can prevent racial, religious, and other such majorities from overriding the views of minorities in determining guilt or innocence.

Senior Judge Richard Baldwin wrote a concurring opinion that details the discriminatory purpose and effect of Oregon’s split verdict rule because, he wrote, a commitment to the rule of law requires Oregonians “to better understand that troubled aspect of our history lest we repeat it.”

Early settlers in the region that would become Oregon generally held anti-slavery views, Judge Baldwin explained. But that did not mean they saw Black people as equals—in fact, many white settlers were opposed to living alongside Black people.

To discourage Black settlers and ensure Oregon would develop as a white state, Judge Baldwin wrote, Oregonians passed exclusion laws that barred Black people from being in the state, owning property, and making contracts. Oregon voters in 1857 approved an exclusion clause that “made Oregon the only free state admitted to the Union with an exclusion clause in its constitution.”

These laws worked—by 1860, only 128 of Oregon’s 52,465 residents were Black. And their legacy remains readily apparent today—in 2013, only 2% of the state’s population was Black.

Oregon voters’ passage of the split verdict law in 1934 was a “self-inflicted injury” that evolved from the state’s racist history, Judge Baldwin wrote. For the next 90 years, it “undermined the integrity of our judicial system and reduced public confidence in our laws and our system of justice.”

Denying equal treatment under the law and full participation in the jury system to Black people not only caused great harm to people of color, Judge Baldwin observed. “That unchecked bigotry also undermined the fundamental Sixth Amendment rights of all Oregonians for nearly a century.”

Oregon Attorney General Ellen Rosenblum, who previously opposed retroactive application of Ramos, applauded the state supreme court for “undoing a rule that should never have been enacted in the first place” and said her office is committed to enforcing the decision.