Juries are supposed to be unanimous. But I was convicted under an unconstitutional law.

I was at home in Oregon last April, four years after being released from a 12-year and eight-month prison sentence, when I learned that the U.S. Supreme Court had decided that the method of my conviction was unconstitutional. Not only that, it was based on a law rooted in racism.

In 2004, I was convicted of criminal charges and sentenced even though two of my jurors didn’t think I was guilty. If my trial had happened in any other state other than Oregon or Louisiana, I would not have been convicted at all.

Every juror’s voice is supposed to matter — the right to a “jury trial” means the right to a unanimous verdict — but up until 2020, not in Oregon (Louisiana changed its law on its own in 2018). And all because white supremacists wanted to stop minorities and marginalized groups from having a voice on juries so they could convict whomever they wanted to.

While we usually think of the Ku Klux Klan in terms of lynchings, bombings and intimidation, we often overlook the influence that the KKK had in government, especially in Oregon. Throughout the 1920s, the KKK took advantage of a rise in racial, xenophobic and anti-Semitic hatred, which set the stage for the passage of Oregon’s nonunanimous jury law in 1934. Violence is not just physical, it was and remains institutional. While I was not kidnapped by white men in hoods, 70 years later, I was caged because of their law.

Why am I still being punished?

When I heard about the Supreme Court’s decision recognizing that my conviction was unconstitutional, and that it was “rooted in racism," as Justice Brett Kavanaugh said in oral arguments, "in a desire, apparently, to diminish the voices of Black jurors in the late 1890s,” I should have been filled with a sense of happiness or at least of vindication. I felt neither.

While it was a blessing to learn that no one would ever be convicted with a nonunanimous jury again, this alone did not free me or those in similar positions. Why? Because of a legal term called “retroactivity.”

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When new rules are announced by the U.S. Supreme Court, they don’t automatically get applied “retroactively.” This means, for all of us unlucky enough to have been victims of laws that the nation's highest court deems brutal, unconstitutional and racist before the Supreme Court ultimately says so, we are condemned to continue to suffer.

When the Supreme Court ruled in 2010 that immigrants are denied the right to effective assistance of counsel when they are not informed of the immigration consequences of their guilty plea, for example, countless people already deported, torn from their families, convicted or otherwise locked up before the decision, were denied any relief.

When the Supreme Court ruled in 2002 that juries — not judges —were the only ones who could ultimately decide to condemn someone to death, those already on death row, facing down the end of their lives because of the whim of a single judge, received no mercy.

And when the Supreme Court ruled in 2011 that juveniles must be specially protected against police interrogation, all those convicted as juveniles then serving time, or burdened forever by the scarlet letter of a conviction, had no second chance.

I lost my life and so much more

I am free now. I am a husband and a father. I am a man dedicated to my community. I try my hardest not to be defined by the stain on my record and reputation.

However, I am still bound by the chains of an unconstitutional conviction on my record. This impacts my employment, housing opportunities, my reputation and so many other aspects of my life. I served my time, but my conviction could follow me for my entire life. We are all condemned by a marker in time that allows injustice and, in my case, institutional racism to persist.

I’m also bound by the trauma and guilt of my unconstitutional incarceration. I went to jail when I was 20, and my two baby daughters were stripped from me. I wasn’t able to be there to support them as they grew up. I also was unable to grow up. Instead of critical developmental milestones in my 20s, from education to simply learning who I was, I was under the constant stress, turmoil and struggle to survive so I could get home to my loved ones, all while fearing whether I would ever truly be able to reconnect with them when I was released.

I lost family while I was in, I missed graduations and weddings, I lost what should have been a normal life for more than a decade. I didn’t even know what normal was. And then within months of me coming out, just trying to start reestablishing myself and building connections with my family and community, my 17-year-old cousin, Quanice Hayes, was killed by Portland police in February 2017. 

States can make things right

Fortunately, there is some hope and this is a fight I believe is worth fighting. We don’t have to rely on the Supreme Court — states have the power to provide retroactive justice.

Right now in Oregon, Attorney General Ellen Rosenblum could stop fighting us in our quest to vacate racist convictions based on our unconstitutional nonunanimous jury law even if the Supreme Court justices won’t. Rosenblum has even acknowledged that the law they struck down was “linked to racism and anti-Semitism” and “an embarrassment to our otherwise progressive state.”

So far, though, Rosenblum has resisted calls to topple this monument to Oregon’s racist past by invalidating previous convictions. The attorney general even filed a brief with the Supreme Court urging it not to apply the ruling retroactively. 

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Ellen Rosenblum was a judge back in 2004. And Ellen Rosenblum was the very judge who presided over my case, rejected my attorney’s arguments that my jury conviction was unconstitutional, and sentenced me to prison time.

While I can imagine it would be hard to acknowledge her own role in perpetuating systemic racism, that she was part of allowing so many people of color to be mishandled in the jury process, I still believe that Rosenblum has the moral courage to do what’s right.

It seems everyone, including conservative Supreme Court justices and Oregon’s attorney general herself, admits that my conviction is the result of racism. But not racist enough to rectify? I hope that as stories like mine emerge, the attorney general chooses to do the right thing and allow the basic right to a fair trial. Everyone deserves their day in court but for far too many, the scales of justice were tipped against us.

The attorney general can and must right these wrongs. As our country and our state examine our laws, policies and practices and the disproportionate impact they have had on communities of color, we must look backward to repair the damage we have done.

Terrence Hayes is a leader with Liberation Literacy, which works with people in prison and outside to build social justice literacy. He is also a member of Oregon DA for the People.