Changes in criminal law will go into effect September 25 (90 days after the session closed) that will increase healthcare costs while making lawyers more lucrative. SB 193 requires a unanimous jury for a guilty verdict, and removes the cap on non-economic damages to an injured party based on two court cases.

In 2020, the Supreme Court of the United States in Ramos v Louisiana, 140 S. Ct. 1390 found that guilty verdicts in criminal cases must be a unanimous jury verdict. The same year, the Oregon Supreme Court found that the cap on the amount of noneconomic damages that could be awarded to an injured party in a bodily injury case deprived the party of their right to a remedy under Article 1, Section 10 of the Oregon Constitution.

Administration of justice. No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.

SB 193, based on the two court decisions, updates ORS 136.450 to require unanimous agreement of jurors for a verdict of guilty and concurrence of at least 10 of 12 jurors for a verdict of not guilty. The measure also removes the statutory cap on noneconomic damages for claims for bodily injury, but retains the $500,000 cap on noneconomic damages for wrongful death claims.

Representatives Janelle Bynum (D-Clackamas) and Maxine Dexter (D-Portland) both expressed that jury verdicts less than unanimous is a significant element of racism and disproportionate impact on Black and brown defendants. Rep. Dexter goes further to say it suggests “efforts to dilute the influence of racial, ethnic, and religious minorities on Oregon juries” traced back to the 1930s. But, is that correct?

ORS 136.450 was originally passed as ORS 136.610 as a “verdict of a trial jury in a criminal action shall be unanimous” until 1973 when it was amended and renumbered to ORS 136.450 to read: “Except as otherwise provided, the verdict of a trial jury in a criminal action shall be by concurrence of at least 10 of 12 jurors except in a verdict for murder which shall be unanimous.” In 1997, the exception was reworded to: “Except when the state requests a unanimous verdict, a verdict of guilty for murder or aggravated murder shall be by concurrence of at least 11 of 12 jurors.” So, it was only in 1997 and not the 1930s that ORS 136.450 was revised in its entirety to: “The verdict of a trial jury in a criminal action shall be by concurrence of at least 10 of 12 jurors.” As of September 25, ORS 136.450 will read: “(1) A jury in a criminal action may render a verdict of guilty only by unanimous agreement. (2) A jury in a criminal action may render a verdict of not guilty only by a concurrence of at least 10 of 12 jurors.”

Rep. Bynum understood that “an interim workgroup would be the place where we would take up case review…” She was not satisfied that the bill didn’t go further. “This bill and its language regarding non-unanimous juries is rather empty to me. I believe it used the racial equity lens to garner support for the other parts of the bill rather than actually doing anything to help people of color on this issue. Using us as a sweetener to deliver on policy goals that should stand on their own merit is morally wrong. I hope our bodies are not ever used in this way again.”

The removal of the compensation cap in injury cases was an issue from prior sessions. The addition was based on an Oregon Supreme Court ruling in Busch v. McInnis Waste Systems, Inc. in July 2020. The ruling did away with a cap on non-economic damages in one case. However, the ruling, like other rulings of this type, should not deem all non-economic damage caps unconstitutional. Representative Lisa Reynolds (D-Portland) as a physician expressed concern that, “non-economic damages are quite variable as they are unquantifiable. Half of the states in the US have placed limits on non-economic damages for medical malpractice. These limits, or caps, are one type of tort reform, and reign in the risks of doing business and the cost of insurance. In the realm of healthcare, these caps lower the overall cost of healthcare and increase physician supply. This then improves access to healthcare.”

It seems she is voicing the consensus of the opposition that “the legislative mechanism to remove this cap, coupling it with the important work to clean up the statute on non-unanimous juries, is a shortcut around a more comprehensive process to address reform on non-economic caps.”

When you match lawyers against healthcare providers in a single bill, there are no winners for Oregonians. Is Rep. Reynolds trying to protect her practice? Might she be protecting her practice against law suits after she responded in a tweet, “We will force vaccines. We will make it a prerequisite, though, for indoor dining, working in your office and furthering your education.” Do lawyers really care that a victim gets a higher award or is it their percentage they want to increase? And, if Rep. Bynum has her way, lawyers will see a lot more cases retrying criminals that didn’t receive a unanimous jury verdict that will come with a high price tag for the state.


--Donna Bleiler

Post Date: 2021-08-20 09:11:35