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A recent decision by the US Supreme Court has left the fate of hundreds of incarcerated Oregonians in the hands of Oregon Attorney General Ellen Rosenblum.

In April 2020, the court ruled in Ramos v. Louisiana that criminal convictions made by a non-unanimous jury (when only 10 out of 12 jurors are in agreement on a verdict) were unconstitutional, promptly barring the practice from being used in the only remaining state that allowed for non-unanimous verdicts: Oregon. While the Ramos case came out of Louisiana, the state of Louisiana voted to bar non-unanimous juries in 2018, while the case was still moving through the courts.

The 2020 Ramos decision allowed Oregonians who were in the midst of appealing their non-unanimous conviction at the time of the ruling to have their case retried by the courts. But it didn’t offer relief to to the hundreds of incarcerated Oregonians who had completed their direct appeals, or who had already served time in prison for a non-unanimous conviction. On Monday, the Supreme Court clarified in the Louisiana case Edwards v. Vannoy, that the Ramos ruling doesn’t apply retroactively to people who were convicted by non-unanimous juries before the April decision.

The court instead suggested that states could decide for themselves whether or not the ruling should be applied retroactively.

“States remain free, if they choose, to retroactively apply the jury-unanimity rules as a matter of state law in state post-conviction proceedings,” wrote Justice Brett Kavanaugh in the majority opinion.

That responsibility falls squarely on the office of Rosenblum, who has been waiting for the Supreme Court’s clarification on retroactivity to drop to inform her position. Yet, with that clarification now public, Rosenblum’s position remains hazy.

“My office remains committed to reviewing every case presented to us that involves a request for a new trial,” said Rosenblum in a media statement Monday afternoon. “We are carefully reviewing the Edwards decision, and will be working expeditiously on a plan for addressing these cases going forward.”

Aliza Kaplan, director of the Criminal Justice Reform Clinic at Lewis and Clark Law School, characterized this statement as both vague and “disingenuous.” That’s because Kaplan’s clinic has been tracking the number of Oregonians convicted by non-unanimous juries who are seeking post-conviction relief from the state Department of Justice, meaning they are petitioning to have their cases fairly retried.

More than 200 people have filed for this relief. Rosenblum’s office is asking to dismiss all of the requests.

“If by ‘reviewing,’ [Rosenblum] means asking courts to ‘dismiss’ cases, then I guess it makes sense,” said Kaplan.

Kaplan and law students working in her clinic have helped people file these petitions over the past year, meaning that they’ve seen these requests for dismissals play out firsthand. Each time, Kaplan said, state prosecutors point to a previous Supreme Court ruling, Teague v. Lane, that affirms new criminal procedure rules do not apply retroactively, to support their dismissal. Monday’s Supreme Court decision confirmed that Teague applied to the court’s April 2020 non-unanimous jury ruling.

Kaplan said she doesn’t expect the Monday decision to change how Rosenblum and her prosecutors address petitions for post-conviction relief.

“Our expectation is that, separate from anything that happens outside of the courts, the Attorney General will continue to argue that there is no retroactivity,” she said.

Kaplan’s data also reflects the disproportionate impact non-unanimous jury convictions have had on Black Oregonians. Of the 226 people who’ve applied for post-conviction relief after receiving a non-unanimous conviction, 65 percent of them are white, and nearly 17 percent are Black—despite Oregon’s population being made up of 75 percent white and 2 percent Black residents. Those numbers are more disparate in Multnomah County, which is composed of 69 percent white and 6 percent Black residents. Kaplan’s data shows that in Multnomah County, 39 percent of all people who’ve applied for post conviction relief are white, while nearly 45 percent are Black.

This disparate impact underscores the racist foundation non-unanimous juries are built upon: Oregon adopted the practice in 1938 on the heels of an explicitly xenophobic campaign, and a similar rule in Louisiana was enacted in the Jim Crow era to make it easier to convict Black defendants. In the decades under this rule, Oregon courts saw many cases where the majority white members of a jury would vote to convict a Black defendant, while the one or two Black members of the same jury would disagree. Because of the structure a non-unanimous jury allowed, those dissenters’ opinions would be ignored, and not impact the verdict.

Sandy Chung, director of the ACLU of Oregon, said that Rosenblum’s actions will speak to the state’s commitment to dismantling its white supremacist history.

“For Oregonians, racial justice is something that’s very important to our communities. We know systemic racism embedded in our institution that are difficult to address,” said Chung. “A couple hundred people are asking for relief. In the grand scheme of things, it doesn’t seem like a big ask in work of racial justice.”

Chung said Rosenblum has two options: To make the broad, statewide decision to allow all previous non-unanimous convictions be retried in court, or to stop dismissing post-conviction relief petitions that reach her office.

Taking a stance on legal procedure wouldn’t be new for Rosenblum. In 2014, Rosenblum announced that she would not defend Oregon’s gay marriage ban in federal court, arguing that she believed the ban couldn’t withstand a constitutional challenge. Chung said it wouldn’t be difficult for Rosenblum to make the same judgement call in terms of allowing those convicted by non-unanimous juries prior a second chance at trial.

“Here, like in that decision, [Rosenblum] could simply stop opposing the petitions and let those cases move forward,” Chung said.

It’s something already underway in Louisiana courts: The District Attorney of New Orleans began sifting through more than 300 cases of non-unanimous convictions that occurred prior to Ramos before Monday’s ruling from the Supreme Court.

Rosenblum appears to still be looking for alternative avenues to address the issue. In a statement shared with OPB Monday, Rosenblum suggested that the state legislature could pass a law that requires state courts apply the Ramos ruling retroactively. If they did, she said, “my office stands ready to help implement any policy decision it may make.”

Gregory McKelvey is a spokesperson with Still in Prison, an Oregon campaign to encourage the Attorney general’s office to apply retroactivity to past non-unanimous convictions. McKelvey said that the Monday decision places “the ball firmly in [Rosenblum’s] court.”

He expressed concern about Rosenblum punting the issue to the state legislature, rather than making the decision herself.

“What we know about the Oregon Legislature is it can take years for legislation to make it out of committee,” said McKelvey. “That’s a lot more years of people sitting in jail. Is that what she wants?”

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