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Only two jurisdictions in the country permit a criminal conviction on the vote of a non-unanimous jury: Oregon and Louisiana. In both states, the constitutional and statutory provisions allowing just 10 of 12 jurors to send someone to prison were powered by racial resentment. While the media has widely acknowledged the policy’s racist historical underpinnings—and litigators repeatedly raise the basic question of how it is possible for the justice system to claim that a non-unanimous jury found someone guilty beyond a reasonable doubt when some jurors did not agree with the verdict—a less-discussed implication is that non-unanimity expands prosecutorial power at the expense of conviction integrity.

Non-unanimous jury verdicts emerged in Louisiana in a clear effort to entrench white supremacy. Addressing the reality that the state had to allow African-Americans to serve on juries, architects of the Louisiana Constitution in 1898 adopted non-unanimity to ensure that even if one or two black jurors ended up on a jury, the white jurors could deliver a conviction without their assent. Similarly, in 1934, Oregon voters passed a ballot measure adopting non-unanimity after outrage boiled over when a jury convicted a Jewish defendant of manslaughter instead of murder. The major paper of record, the Morning Oregonian, published an editorial blaming the verdict it disliked on “vast immigration” from southern and eastern Europe.

The practice of allowing juries to convict without unanimous agreement does more than marginalize minority voices: it transfers even more power into the hands of prosecutors. To start, no matter what some prosecutors claim about how non-unanimity gives defendants a better chance of winning an acquittal, the purpose of the policy was to make obtaining convictions easier. The Oregon Supreme Court explained as much when describing the ballot measure: “It clearly appears from the argument in the Voters’ Pamphlet that the amendment was intended to make it easier to obtain convictions.”

In practice, the policy has achieved that goal, both by enabling convictions at trial and by shifting the plea bargaining power further in the State’s favor. A terrific new piece in The New Orleans Advocate explores this theme. It quotes one former District Attorney as saying, “[t]he state goes into any criminal trial with an overwhelming advantage. . . . That’s why a lot of cases don’t go to trial. Defense lawyers realize that . . . the burden is so huge they don’t feel like they’ve got a chance. So the best thing is to work out a plea.” It also shares the similar view articulated by an experienced judge: “Retired Orleans Parish Judge Frank Marullo, who likely presided over more jury trials than any other Louisiana judge, describes the split-jury law as an obvious muscle boost for prosecutors in a system already tilted in their favor.”

Prosecutorial power compounds when prosecutor-friendly policies like this are stacked on top of each other. Consider laws that enact mandatory minimum sentences or enable prosecutors to ramp up penalties by charging defendants as habitual offenders. The Advocate smartly describes how these laws interact with non-unanimity: “[Louisiana] combines that lower bar for conviction with harsh sentencing practices and a punitive multiple-offender law. It’s a potent cocktail that puts awesome power in the hands of prosecutors, who need only 10 votes on a jury to convict.”

If there is any doubt that non-unanimity plays a major role in either Oregon or Louisiana, empirical research resolves it. According to a study in Oregon by the Office of Public Defense Services in 2009, “more than 40 percent of the 662 convictions it surveyed from 2007 and 2008 were non-unanimous.” A new study in Louisiana—which has the highest incarceration rate in the country—produced similar findings. According to a deep analysis conducted by The New Orleans Advocate “40 percent of trial convictions . . . came over the objections of one or two holdouts.” Of course, if these states required unanimity, many of these convictions may have still occurred, but instead with the deliberation and agreement of all jurors. However, some trials surely would have resulted in acquittals or hung juries. And, given that some juries would have reached lesser verdicts, unanimity would mean that many prisoners would be serving shorter sentences.

As criminal justice reform advocates in both Oregon and Louisiana seek to repeal laws allowing non-unanimity, it is worth looking at what prosecutors are doing and saying in response. After all, as Josie Duffy Rice wrote about so well this week, prosecutors do more than just enforce laws, they play an often-decisive role in making them or stymieing them. Indeed, the Oregon District Attorneys Association endorsed the Oregon ballot measure in 1934 in the pamphlet voters received (see page 7).

For a moment, it appeared that the association would actually take the lead in reversing the policy. In January of 2018, “Matt Shirtcliff, the top prosecutor for Baker County and current president of the district attorneys association, said: ‘It’s time for reform on this issue and we want to take a leadership role.’” Within three weeks, the prosecutors backed down, unwilling to voluntarily decrease their power without simultaneously passing a law that gave them the authority to prevent defendants from waiving their right to a jury trial. Power is so addictive, the permanent stench of the policy’s racism and unfairness is not enough to move prosecutors.

Meanwhile, in Louisiana, the state’s District Attorneys Association is doing what it does. Its executive director recently told legislators—with little empirical proof—that repealing non-unanimity will burden the justice system with hung juries. The group, which also is fighting off efforts to increase external oversight of prosecutors who commit misconduct, is now apparently posturing that it is neutral about current legislative moves toward unanimity. But, followers know the score. When it comes to reducing prosecutorial power—no matter how odious the history behind the escalation of that power—one should not look to those who wield it to voluntarily give it up.

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