Sandy Chung
Chung is executive director of ACLU of Oregon. She lives in Portland.
Last year, the U.S. Supreme Court struck down a longstanding Oregon law that allowed nonunanimous juries to convict people in criminal cases. In issuing its decision in the Ramos v. Louisiana case, the high court recognized that Oregon’s nonunanimous jury law, the last remaining of its kind among U.S. states, could be traced to white supremacy in the 1930s, including “the rise of the Ku Klux Klan and efforts to dilute ‘the influence of racial, ethnic, and religious minorities on Oregon juries.’”
Unfortunately, earlier this month, the court issued another decision in the Edwards v. Vannoy case that seems to ignore its own conclusions of the injustice dealt by such split verdicts. Under the Edwards decision, Oregonians whose cases were no longer in direct appeals as of the date of the Ramos decision are precluded from seeking retrials through federal courts. However, the high court noted, “States remain free, if they choose, to retroactively apply the jury-unanimity rule as a matter of state law in state post-conviction proceedings.”
As a result of the Edwards decision, there are hundreds of Oregonians still in prison or with criminal convictions who were unconstitutionally convicted by nonunanimous juries but have no path to justice under federal law. So now, the decision to undo the injustice of this racist Oregon law lies in Oregon Attorney General Ellen Rosenblum’s hands.
Juries hold an immense responsibility in our criminal justice system — the responsibility of making sure that the liberty of individuals is not taken away except when a conviction is supported by ample evidence. When the participation of jurors of color is systematically erased, however, juries can perpetuate racial inequality and unjust outcomes.
In college, while serving on a jury as the only person of color, I experienced the potential unfairness and injustice that can impact a person of color being tried by a jury. The defendant in my jury trial was a young man of color. He had been charged with driving under the influence of marijuana. Within about 10 minutes of entering the jury room, my fellow jurors announced that the young man of color was guilty. However, I wasn’t convinced. During the trial, prosecutors did not present any evidence that the young man had ever even smoked or ingested marijuana.
If we had been in Oregon, the young man would have been found guilty because my vote would not have mattered. However, we were in Massachusetts, which requires a unanimous jury decision. For three days, the other jurors pressured me to change my mind. No matter how tense the jury room became, I took my jury service seriously and persisted because I knew that it was wrong for this young man to be found guilty when the evidence did not support it. I also knew that a wrongful conviction would likely have devastating life consequences for this young man. Time in prison, a monetary fine, and a criminal record can destroy schooling and job prospects, and the mental and emotional trauma that follows can cause a cascade of harmful impacts on parents, siblings, spouses, other loved ones, and communities.
After the Supreme Court held that nonunanimous juries were unconstitutional, Oregon courts were required to allow retrials for any people convicted by a nonunanimous jury and whose cases were still being appealed as of the date of the Ramos decision, April 20, 2020. But what about the people with older cases? In the Edwards decision, the conservative judges on the high court decided they would offer no relief for those people, allowing the arbitrary timing of the Ramos decision to determine this denial of justice.
But there is still hope on the state level. As the Supreme Court made clear, Oregon’s courts have the power to rectify the legacy of our state’s racist nonunanimous jury law for all, not just some, impacted Oregonians. Unfortunately, like the high court’s conservative judges, Rosenblum continues to rely on the arbitrary April 20, 2020 cutoff date to oppose hundreds of Oregonians’ requests for relief. The attorney general has taken this position even though she knows that there is no legal mandate to oppose justice for these Oregonians. Indeed, the attorney general and her office regularly exercise their discretion to not oppose other types of requests in Oregon’s courts; she should do the same here.
Each of us has a responsibility to do what we can to rectify the devastatingly harmful impacts of white supremacy and racism in our country. In 2014, Rosenblum took a stand and refused to defend an Oregon state law banning gay marriage because she believed that was the right thing to do. Rosenblum has the chance to do the right thing again, now on behalf of Oregonians who were unconstitutionally convicted by our state’s racist nonunanimous jury law, individuals who are disproportionately people of color.
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