Oregon lawmakers are considering legislation that could vacate convictions for hundreds of people currently serving prison sentences if they can prove they were convicted by a non-unanimous jury.
Members of the Senate Judiciary Committee heard details Monday about a measure that, while still in its early stages, appears likely to become a bill that鈥檚 introduced during the legislative session in February.
Under the proposal, defendants able to prove through court transcripts or recordings that a non-unanimous jury convicted them would get one year to apply for post-conviction relief. If granted, the defendant鈥檚 non-unanimous conviction would be overturned and sent back to the local district attorney鈥檚 office, for prosecutors to consider whether to retry the case.
The idea for the legislation follows two recent U.S. Supreme Court rulings with major implications for Oregon鈥檚 criminal justice system.
Last year, the Supreme Court in state criminal cases were unconstitutional. In a that while the Ramos ruling itself wasn鈥檛 retroactive, states could decide to apply it to post-conviction proceedings.
Oregon was the last state in the country to allow for felony criminal convictions by juries of 10-2 or 11-1. Even if there was doubt or disagreement on a jury, convictions were still possible until the Supreme Court鈥檚 ruling in 2020.
After the Supreme Court ruled in Ramos, the Ramos Project, part of the Criminal Justice Reform Clinic at Lewis and Clark Law School, sent notices about potential conviction relief to all the state鈥檚 prisons.
Nearly 500 people petitioned the state for post-conviction relief, according to Laney Ellisor, a staff attorney of the Ramos Project, who testified to lawmakers Monday. But after reviewing those, Ellisor said the number of people making a claim based on the Ramos decision was about half, 244 people. She estimated another 30-40 defendants who hired private attorneys also filed.
鈥淚f the Legislature were to pass the proposed legislation, we sincerely and strongly believe that there would not be a flood of new [post-conviction relief] litigants,鈥� Ellisor said.
Rather, she argued, most people eligible already have filed.
鈥淒ue to a lack of jury polling most people who went to trial can鈥檛 prove they were convicted non-unanimously and that is a requirement of the legislation,鈥� she testified. 鈥淎nd of course, most people don鈥檛 go to trial anyway.鈥�
Still, the Oregon Department of Justice鈥檚 Legislative Director Kimberly McCullough said, until there鈥檚 a final bill, it鈥檚 hard to estimate the total number of defendants eligible.
鈥淥ur assumption is many cases will result in an outright dismissal,鈥� McCullough testified. 鈥淲e also assume many cases will be resolved through plea negotiations, so it鈥檚 a bit hard to tell how many [new] trials will be generated.鈥�
The Oregon District Attorneys Association also testified Monday, and noted the impact revisiting old cases can have on victims.
Scott Healy, the first assistant in the Clackamas County District Attorney鈥檚 Office, told the committee that determining whether to retry a case takes resources, especially after evidence gets old with time, or witnesses and victims have moved on.
鈥淥ur resources are already stretched very thin as you can imagine because of the pandemic backlog,鈥� he said.
Ellisor, with the Ramos Project, testified that 13 counties in the state don鈥檛 have any cases, while only four counties in the state have more than 11 cases. The counties with the most cases also have a larger number of prosecutors and court staff: Multnomah, Washington, Marion and Lane counties.
Aaron Knott, DOJ鈥檚 former legislative director who now serves as the policy director for the Multnomah County District Attorney Mike Schmidt, agreed resources are tight, but still urged lawmakers to act.
鈥淭he racially problematic history of Ramos is well established and the inevitable tendency of a non-unanimous based system to silent dissent and shorten jury deliberation is itself justification enough to require urgent legislative action,鈥� Knott testified.
Voters in Oregon added non-unanimous juries to the state Constitution in 1934, during a time when anti-immigrant sentiment was high and the Ku Klux Klan was coming off the height of its power in the state.
Racial disparities related to non-unanimous juries in Oregon are difficult to calculate, in part, because historically, state court data hasn鈥檛 tracked those outcomes. The information that does exist suggests that defendants of color, particularly Black defendants, were convicted more often by a non-unanimous jury, according to data the Criminal Justice Commission presented to lawmakers Monday.
According to the Ramos Project, almost half the post-conviction cases they received from Multnomah County involve Black petitioners. Black residents only make up 6% of the county.
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