Citing racist origins, justices struck down Oregon's law allowing such convictions, but the state isn't applying the ruling retroactively
Update: The U.S. Supreme Court ruled Monday, May 17, in In a statement , Oregon Attorney General Ellen Rosenblum said her office is "committed to reviewing every case presented to us that involves a request for a new trial. We are carefully reviewing the Edwards decision, and will be working expeditiously on a plan for addressing these cases going forward." She said she's asking the Legislature to review whether to apply the Ramos v. Louisiana ruling retroactively.
Last spring, the U.S. Supreme Court ruled that juries had to vote unanimously in order to convict a suspect on felony charges, drawing cheers from criminal justice advocates in Oregon — the only state that allowed non-unanimous convictions.
But now, a year later, more than 200 Oregon prisoners are in a holding pattern.
The Oregon Department of Justice is waiting on another ruling before it takes action on their cases. But advocates say the state should retry those cases — and that it doesn’t need to wait to do so.
The Supreme Court’s 2020 decision in Ramos v. Louisiana declared the practice of allowing non-unanimous convictions — which had been permitted in Louisiana and Oregon for generations, but nowhere else in the United States — was unconstitutional.
For criminal justice advocates in both states, the ruling was a long time coming. Louisiana voters had done away with that state’s law in 2018, and Oregon lawmakers looked into putting the issue on the ballot in 2020, but the measure failed to pass out of the state Senate.
But the Ramos decision has left both states in something of a legal limbo when it came to addressing those convicted before the decision’s release.
••• I n 2016, the American Civil Liberties Union and the Oregon Justice Resource Center challenged the state’s law on behalf of Olan Jermaine Williams, a Black man tried on three charges of sodomy that year and acquitted of two, but convicted — non-unanimously — of a third. The Oregon Court of Appeals denied Williams’ motion for a new trial.
A juror in his trial, Cash Spencer, has since spoken publicly about the law.
“There were only two Black people in the room,” Spencer told Street Roots. “It was me and the defendant,”
Initially, the jury was split eight to four, with eight jurors saying they thought Williams was guilty. A ninth changed their mind at lunch.
Another changed her vote, Spencer said, because, after a trial that lasted most of a week, she couldn’t keep leaving her daughter at home.
So Williams was convicted 10-2.
“Knowing this person was going to get over eight years because someone didn’t want to come back the next day upset me highly,” Spencer told Street Roots.
After the Ramos decision, Williams’ case was remanded to the circuit court for further proceedings.
He wasn’t alone; 427 Oregon cases of non-unanimous convictions that were under direct appeal were automatically vacated and sent back for retrial, said Aliza Kaplan, a Lewis & Clark Law School professor.
Kaplan told Street Roots she’s aware of at least 200 more individuals who were also convicted non-unanimously but who had already gone through the appeals process — meaning the Ramos decision didn’t directly apply.
Of those, 226 have filed for post-conviction relief under the Ramos decision, with public defense lawyers assigned through Oregon Public Defense Services.
Kaplan said she’s aware of about 50 to 60 more who have filed for relief through private attorneys, though those numbers are not being tracked.
One of them is Tacuma Jackson, who was convicted on first- and second-degree counts of robbery and second-degree kidnapping in 2000. In January, he was granted clemency and released from prison.
He was 26 at the time of his conviction, and he knew none of his convictions were unanimous but didn’t know how unusual Oregon’s law was.
“I really didn’t have a clue. I wasn’t law-savvy like that,” Jackson told Street Roots.
••• N ow, Oregon’s law is in the national spotlight.
More than 40 criminal justice organizations have formed the Still in Prison campaign to call attention to those still awaiting new trials. Last month, Human Rights Watch started a campaign asking Attorney General Ellen Rosenblum to retroactively apply the Ramos ruling, which would grant new trials to those whose trials are past the point of appeal.
The civil rights nonprofit Color of Change has started an online petition , which, according to Portland organizer Gregory McKelvey, has received more than 2,000 signatures — and a tweet from Chelsea Clinton.
So far, the national attention hasn’t resulted in concrete change in Oregon.
DIRECTOR'S DESK: Oregon should retroactively apply ruling on non-unanimous juries
Oregon Department of Justice spokesperson Kristina Edmunson confirmed that more than 400 convictions have been sent back for retrial.
But Rosenblum said she’s waiting to hear about the Supreme Court’s ruling on another case, Edwards v. Vannoy , which directly addresses whether the Ramos decision can be applied retroactively.
That case was argued last fall, which means a decision could be released any day.
(May 18 update: The court ruled Edwards v. Vannoy on May 17, indicating that the Ramos decision does not have to be applied retroactively but leaving it up to the states to decide if they want to retry the cases that were affected.)
In March, Rosenblum said in a statement to The Oregonian that she “cannot resolve Oregon’s nearly 100-year practice of less-than-unanimous jury decisions by executive fiat.”
Kaplan doesn’t buy it.
“There’s a number of things she could do,” Kaplan told Street Roots. Kaplan believes Rosenblum could explicitly stipulate retroactivity, or just not fight the retroactive petitions.
In Louisiana, prosecutors aren’t necessarily waiting to retry cases affected by the Ramos ruling. Orleans Parish District Attorney Jason Williams, for example, has ordered new trials for prisoners convicted by split juries between 1974 and 2014.
Before Ramos was decided, Rosenblum filed a brief saying that she supported ending the non-unanimous jury rule but cautioned that new trials would “re-traumatize crime victims and survivors and overwhelm our state’s criminal justice system.”
Advocates say she likely overestimated the burden new trials would impose.
“The numbers are just not as high as she maybe thought at the beginning,” McKelvey told Street Roots.
And crime survivors aren’t a monolith, advocates say.
ACLU Oregon Director Sandy Chung told Street Roots her organization hasn’t communicated with crime victims’ survivors groups on this specific issue but has worked with them on other cases, and they’re not necessarily seeking vengeance or looking to get people imprisoned based on racist systems.
“I think it’s a false dichotomy that is sometimes set up when the attorney general or the Oregon Department of Justice says, ‘Well, what about victims’ and survivors’ rights?’” Chung said. “I, myself, have worked with the survivors of sexual assault, and I’ve never heard a sexual assault survivors say, I just want anyone penalized.”
Rosemary Brewer, executive director of the nonprofit Oregon Crime Victims Law Center, said her organization has heard from a few victims involved in cases that were convicted non-unanimously since the Ramos decisions, mostly to ask questions about what the decision might mean for them.
Her organization doesn’t have a position on whether the cases in question should be retried, and she said victims’ opinions can vary greatly.
“All that we’re asking for is that victims be participants in the process — that they receive notice, that they have the chance to sit down with the D.A. and talk about it,” Brewer said.
••• I n the current legislative session, a bill that would have required the Department of Justice to review criminal cases involving non-unanimous convictions died in committee — specifically because the Department of Justice had indicated it was already doing that work.
“I’m not sure why we need to do a state law to get that information,” Sen. Floyd Prozanski (D-Eugene) told Street Roots.
But Senate Bill 193 , which would update the state’s criminal code to reflect that felony convictions have to be unanimous, has passed out of the Senate and was referred to the House of Representatives for a first reading last week.
“It’s time for us to clear up and clean up our statutes,” Prozanski said.
The old statute illustrates some unpleasant truths about Oregon’s past.
“Though it’s hard to say why these laws persist, their origins are clear,” Supreme Court Justice Neil Gorsuch wrote about Oregon and Louisiana in his opinion in the Ramos case.
Louisiana’s law was passed alongside a series of Jim Crow laws: a poll tax, a combined literacy and property ownership test and a grandfather clause that in practice exempted white residents from many of these requirements.
Initially, the delegates who wrote Louisiana’s law wanted to prevent African Americans from serving on juries but knew such laws would be struck down, so they designed a “facially race-neutral” way to render Black Louisianans’ jury service meaningless.
Oregon’s law “can be similarly traced to the rise of the Ku Klux Klan” and efforts to dilute the influence of “racial, ethnic, and religious minorities on Oregon juries,” Gorsuch wrote, noting that neither state has contested the racist origins of their laws, which were last reviewed by the Supreme Court in 1972.
Justice Brett Kavanaugh, in an argument concurring partly with Gorsuch’s opinion, agreed, citing a 2017 Oregon Law Review article co-authored by Kaplan.
That piece noted that Oregon’s law, which was passed in 1934 by a state ballot measure, was precipitated by xenophobic and anti-Semitic media coverage of the trial of Jacob Silverman, a Jewish man tried for first-degree murder of a white, Protestant victim.
“It’s just institutional lynch mob. It disproportionately impacted Black people until this day,” McKelvey, the petition organizer, told Street Roots.
••• T he law works the way it was intended to work, former juror Spencer wrote in a letter that was included in an amicus brief sent to the Supreme Court. “Those with racist tendencies wanted minority jurors to be silenced.”
Of the 427 cases awaiting post-conviction relief, 15.46% involved Black defendants, whereas Black people make up just 2.2% of the state’s population, according to an analysis by the Criminal Justice Reform Clinic, which Kaplan leads at Lewis & Clark Law School. Nearly 15% of defendants were Latino, compared with 13.4% of Oregon’s population, and 2.11% were Native American, compared with 1.8% of the population.
Jackson said that when he was in prison, he knew other men who were convicted by non-unanimous juries. In the few months since his release, he’s co-founded a mental health nonprofit with his wife, laid the groundwork for opening a car dealership and advocated for state legislation that prohibits involuntary servitude of all kinds — including as punishment for a crime.
He’s also become a vocal advocate for retroactively applying the non-unanimous jury rule.
“This thing was built around systemic racism and white supremacist laws and precepts. We’re teaching these things. We become so numb to it that it’s become a lesson that we’ve been taught; we’ve been so numb to it,” he said, adding that people forget that racist artifacts from the past can still have a concrete effect on people’s lives.
Spencer also said it’s telling that Oregon waited for the Supreme Court to issue a ruling rather than proactively change the law.
“In Oregon, we like to say that we’re diverse and progressive and we’re open to all,” Spencer said. “It seems to me that we should have decided this is not who we are and let us change it.”
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