by Dale Chappell
Only Louisiana and Oregon allow non-unanimous jury verdicts to convict. In both states, the law allows just 10 of the 12 jurors to agree a person is guilty. While such laws give prosecutors “awesome power” to convict, they also have racist roots.
In 1898, Louisiana adopted the non-unanimity rule after it was required to allow blacks to serve on a jury, figuring that even if one or two blacks wound up on a jury and refused to convict, the white jurors could still convict. In 1934, Oregon passed a law allowing non-unanimity when a Jewish immigrant was convicted of manslaughter instead of murder. An editorial in a newspaper at the time blamed the reduced verdict on “vast immigration.”
By combining mandatory minimum sentences and harsh habitual penalty threats with non-unanimity, The New Orleans Advocate called this a “potent cocktail” in the hands of prosecutors. In a 2009 study by the Oregon Public Defense Services, researchers discovered that more than 40 percent of 662 convictions between 2007 and 2008 were non-unanimous. Louisiana’s numbers are similar.
Prosecutors, unsurprisingly, have pushed to keep the non-unanimity laws on the books, despite its racist origin. It was the Oregon District Attorney’s Association in 1934 that endorsed the law in a pamphlet to voters and the Louisiana District Attorney’s Association that told lawmakers recently that repealing the non-unanimity rule would burden the justice system with hung juries. Some have noted that one should not look to those who wield power to voluntarily give it up.
Non-unanimity does more than marginalize minority voices; it also gives prosecutors great power, giving them an “overwhelming advantage,” a former prosecutor said. Often, “[t]he best thing to do is work out a plea,” regardless of guilt or innocence.
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