A case going before the United States Supreme Court on Monday morning could fundamentally change Oregon’s criminal court system—and while most legal experts in Oregon support the potential change, Oregon Attorney General Ellen Rosenblum is urging the Supreme Court to maintain the status quo.
The case, Ramos v. Louisiana, asks the court to consider whether state-level split-jury convictions—that is, criminal convictions that do not require a fully unanimous jury—are constitutional or not. The case concerns Evangelisto Ramos, a man who was convicted of second-degree murder by a 10-2 jury decision in 2016.
A 10-2 jury split was the minimum standard for most criminal convictions in Louisiana, but voters overturned the policy in a statewide ballot measure last year. That left Oregon as the last remaining state in the nation to allow split-jury decisions—which would change if the Supreme Court rules that all split-jury convictions are unconstitutional.
Both Louisiana and Oregon’s split-jury rules had roots in racism and xenophobia; in Louisiana, the policy stemmed from Jim Crow-era law, while Oregon’s law can be traced back to 1930s anti-immigrant sentiment. A recent Pulitzer Prize-winning analysis by Louisiana newspaper The Advocate found that split-jury convictions affect Black defendants much more often than white ones.
Both criminal justice reform advocates like the Oregon Justice Resource Center and mainstream legal groups like the Oregon District Attorneys Association (ODAA)—two groups that often find themselves on opposite ends of an issue—support overturning Oregon’s split-jury rule.
“[It]t is a hallmark of our justice system that it should be difficult to take someone’s liberty,” wrote an ODAA member in an Oregonian op-ed last year. “That’s exactly why defendants in criminal cases enjoy the presumption of innocence and the prosecutor must establish guilt beyond a reasonable doubt. Adding the requirement of unanimity is another important safeguard against both wrongful convictions and wrongful acquittals.”
Rosenblum is also on the record as opposing split-jury convictions, saying she would support a statewide ballot measure banning them. But when it comes to Ramos in particular, Rosenblum falls on the side of stalling change, going so far as to submit a legal brief to the Supreme Court asking them to rule in favor of Louisiana.
In a statement shared with media in August, Rosenblum said she was concerned that a ruling in favor of Ramos could “require new trials in hundreds, if not thousands, of cases” in Oregon, which could in turn clog Oregon’s court system. She said her brief “in no way undercuts my view that Oregon should require juror unanimity in criminal cases going forward"—rather, she is worried about the potentially retroactive nature of a Ramos decision.
Aliza Kaplan, a law professor at Lewis & Clark and the co-founder of the Oregon Innocence Project, told the Mercury that in her opinion, Rosenblum is “acting like the sky is falling,” and that her estimate of cases that could be re-opened is likely overblown. Rosenblum’s office recently furnished Kaplan with a list of 292 cases that could be re-tried should the Supreme Court rule in favor of Ramos, but when Kaplan analyzed 110 of them, she found just 14 that she said would fit the legal requirements for relitigating.
And even if the ruling would overwhelm state courts, Kaplan said, that isn’t reason enough to oppose it.
“The Constitution should always trump any administrative inconvenience or burden,” she said. “This is about preserving individual rights and liberties.”
There are many moral and racial arguments for doing away with non-unanimous jury convictions. There are also commonsense arguments for keeping split-jury decisions: namely, that they make for a more efficient legal system, because they reduce the risk of having a hung jury. But Monday’s Ramos hearing will likely center around a more technical legal issue.
It is already established law that people are entitled to a unanimous jury at the federal level, thanks to the Sixth Amendment, which is part of the original Bill of Rights. But it is yet to be determined whether that right is extended to the state level through the 14th Amendment, which guarantees “due process,” or fair legal proceedings, to states. This practice—extending federal Bill of Rights protections to states through the 14th Amendment—is known as the “incorporation doctrine.”
The Supreme Court has already made many rulings based on incorporation doctrine—earlier this year, for example, it ruled that a right to not face excessive fines should apply to states, as opposed to only applying at the federal level. If the Supreme Court decides that split-jury verdicts are unconstitutional, it will likely be for that same reason.
Although the Supreme Court will hear arguments for Ramos on Monday morning, it is not required to release its decision until June 2020.
It remains to be seen what the exact effect of a pro-Ramos ruling could have on Oregon’s legal system. But for Kaplan, no cost could outweigh the benefit of abolishing split-jury decisions.
“Too much justice,” she said, “is not really a problem.”