Oregon is not the first state that springs to mind in connection with Jim Crow, but it used to be more fertile territory for the Klan than anywhere else.
It was for strictly racist reasons that Oregon and Louisiana became the only two states to allow defendants to be convicted of a noncapital crime over the objections of one or two holdouts during jury deliberations. Given that prosecutors are inclined to strike Black people during jury selection, that meant that plenty of Black defendants were sentenced to long stretches without being convicted beyond a reasonable doubt.
When the U.S. Supreme Court in 2020 ruled that majority verdicts were unconstitutional, it was left to the states to decide whether to grant new trials to those already convicted. The Oregon Supreme Court decided to go the retroactive route in the interests of justice. The Louisiana Supreme Court decided that that much justice would be way too inconvenient for our justice system.
States don't come any Whiter than Oregon, which has a Black population of around 2%, and it was by no means always that high.
According to the 1860 census, Oregon's population of 52,465 included 128 Black people. State laws, though largely unenforced, banned Black people from the state altogether, and made them liable to be whipped if they hung around. Black people knew when they were not wanted, however. By the 1930s, Oregon had the country's highest per capita Klan membership.
The constitutional amendment allowing majority jury verdicts in Oregon was passed in 1934 after a jury deadlocked 11-1 in favor of convicting a Jewish defendant in a murder trial.
By then, Louisiana juries had been merrily sending defendants to prison by majority vote for decades. The unanimity requirement was scrapped by the 1898 state constitutional convention, which was convened with the avowed purpose of perpetuating White supremacy.
Now the Louisiana Supreme Court has voted against applying the new rule retroactively, which would have made some 1,700 convicts eligible for a retrial. It is undeniably true, as the majority opinion says, that reopening that many proceedings would impose a “high administrative burden” on the state, which is surely why all justices save the only Black one, Piper Griffin, voted not to give the unconstitutionally convicted a break.
In her dissent, Griffin argued that injustices from Louisiana's past demand action now from the state's high court. If a conviction was unconstitutional in 1898, it is unconstitutional today, she argued rather persuasively. “That the Louisiana Constitution of 1974 somehow cleansed the nonunanimous jury system of its racial animus and impact is an untenable position,” she opined.
The Oregon District Attorneys' Association noted in an amicus brief that the latest ruling in that state will make it more difficult to secure convictions, but added that it “should be difficult to take someone's liberty” anyway.
Words for our justices to ponder.
Email James Gill at gill504nola@gmail.com.