Oregon’s low bar for conviction

We’re one of only two states that allows felony convictions from a non-unanimous jury, requiring only 10 votes to convict out of 12. The law is being challenged by an Oregon man and may reach the Supreme Court:

Mr. Bowen may find allies in two of the current court’s more conservative members, Justices Antonin Scalia and Clarence Thomas, who have often joined with more liberal justices to enforce the original meaning of constitutional provisions protecting the rights of criminal defendants.

The men who drafted the Sixth Amendment understood criminal convictions to require, as William Blackstone put it in 1769, “the unanimous suffrage of 12” of the defendant’s “equals and neighbors.” The Supreme Court has invoked that language in recent decisions concerning the importance of the jury’s role in determining facts supporting convictions.

I don’t have an informed opinion on the original meaning of trial by jury, but as a matter of policy I’d be happy to see a higher bar needed for felony convictions. Local prosecutors aren’t pleased with the prospect, a sign that requiring unanimity is a good idea:

Joshua Marquis, the district attorney in Clatsop County, Ore., said requiring agreement among just 10 jurors was efficient.

“Pretty much the only difference is that we have fewer hung juries,” he said.

Mr. Marquis added that 10 votes were required for conviction or acquittal and so the requirement favored neither the prosecution nor the defense. “Those two people who hold out,” he said, “are as often holdouts for the prosecution.”

Obviously the situation isn’t really so symmetric: In the case of a hung jury the defendant doesn’t go to prison and the prosecution may not bother to retry him. Hung juries are a useful signal that reasonable doubt exists. Nor do we necessarily want symmetry. Various rules of criminal justice (the burden of proof, non-reviewable acquittals) are intentionally biased against the prosecution to protect against false convictions. This will be an interesting case to watch if the Court takes it up.

Dawkins doesn’t get juries