'No Chance' Seattle's CHAZ Demand for Retrials for People of Color Happens

The Capitol Hill Autonomous Zone protesters' list of 30 demands includes granting retrials to all people of color serving sentences for violent crimes, but experts say the Constitution makes such a do-over a nonstarter.

Data shows the genesis of the demand: Incarceration rates are disproportionately higher among Hispanic and black populations than white populations. Black people are about five times more likely than white people to be incarcerated, and for Hispanic people, the number is double, according to the Bureau of Justice Statistics (BJS). Of those incarcerated, about 60 percent of both blacks and Hispanics and nearly 50 percent of whites are serving time for a violent crime, the BJS reported.

The high rates for people of color come in part because racial bias stacks the judicial system against them, scholars and activists said. And while cases of wrongful prosecution exist, granting retrials to every person of color would violate the Fourteenth Amendment and overwhelm court systems, legal experts said.

The Fourteenth Amendment, ratified after the Civil War, grants equal protection to all people regardless of their race. As a result, granting retrials for people of color only would likely be seen as discrimination against whites in the courts and a violation of the amendment. Tracey Maclin, a constitutional law professor at Boston University School of Law, told Newsweek the "demand wouldn't last a second in a court of law."

"There's no chance. It's silly," Maclin, who is black, said. "Most people have a double standard. What if this were George Wallace saying let's retry all the white guys? It makes no sense."

Newsweek reached out to representatives within the CHAZ community but did not receive a response in time for publication.

There are times when race can be used to craft a law, but a constitutional challenge requires lawyers to persuade the Supreme Court there's a "compelling" reason to do so. Maclin explained that "compelling" doesn't mean "important" or "a good reason," as racial justice is. As a legal standard, "compelling" has to be "bordering on extraordinary," he said, and emphasized race-based laws are few and far between.

chaz retrial people of color
People paint an acronym for "Capitol Hill Autonomous Zone" near the Seattle Police Departments East Precinct on June 10 in Seattle. CHAZ protesters demanded retrials for all people of color serving sentences for violent crimes, but experts say it's a constitutional nonstarter. David Ryder/Getty

One of the most well-known examples of such a law is affirmative action, which permits higher education institutions to favor applicants from underrepresented groups. Another example is the 1944 Supreme Court ruling that the U.S. government ordering only Japanese-Americans to relocate to internment camps during World War II was warranted because of the "martial necessity arising from the danger of espionage and sabotage."

As part of this demand, CHAZ also calls for juries in these retrials to be made up of "peers in their community." It's unclear what CHAZ means by "peers in their community," but legal scholars point out the Constitution prohibits explicitly defining a jury based on race.

"Notwithstanding the fact that it plays out that way with non-minorities, it's not a fair proposal to insist on a jury that's basically a mirror image of the defendant," Ediberto Roman, a law professor at Florida International University, told Newsweek.

Prosecutors and defense attorneys have the ability to dismiss people during jury selection they feel won't be sympathetic to their side, a process some lawyers and activists say permits the exclusion of minorities and discrimination. The underrepresentation of people of color on juries "seriously undermined the credibility and reliability of the criminal justice system," Equal Justice Initiative Executive Director Bryan Stevenson said in a 2019 statement.

If legislators passed a law in line with CHAZ's demand, George Fisher, a law professor at Stanford University, told Newsweek he couldn't see it holding up in the Supreme Court. He called it a "constitutional nonstarter" and suggested Capitol Hill protesters instead consider fundraising efforts to incentivize public defenders to examine old cases. Giving them another look could lead to the discovery of new evidence that may justify a new trial on a case-by-case basis.

According to Roman, another option could be for law schools to conduct an empirical-based review of convictions to see whether there are indications of injustice. That information could then be used to inform the community and incarcerated people could use the findings as part of their individual appeal for a retrial, Roman told Newsweek.

Courts can grant retrials when there's new evidence that could prove the defendant's innocence or if there was proven misconduct during their original trial. While the Sixth Amendment grants everyone the right to a jury trial and the Fifth Amendment prohibits a person from being tried for the same crime twice, the Constitution doesn't give people a right to a new trial.

Successful appeals for a new trial are rare and researchers at the University of Michigan found black people are more likely to be wrongly convicted than white people. Data on exonerations showed black people were about seven times more likely to be convicted of murder than innocent white people and a black prisoner serving time for sexual assault is three-and-a-half times more likely to be innocent than a white sexual assault convict.

Appeals for a new trial can come years or even decades after a conviction, making it difficult to retry cases because evidence degrades and disappears over time and eyewitnesses can be forgetful and harder to track down, Fisher told Newsweek. A retrial can also cause victims of violent crimes to be retraumatized.

Legal barriers aside, Maclin said retrying all people of color won't happen because the judicial system doesn't have the capacity. The justice system is "never terribly quick and on top of its caseload," Fisher said, and since the pandemic delayed cases, there will be a "big backlog" of cases waiting to be tried after it's over.

Roman added that it's also "highly unlikely" the public will get behind the effort. The majority of people think black people are treated less fairly than whites, a 2019 Pew Research poll showed, but Roman said it's going to be difficult to gather widespread support for the belief that every single person of color received an unfair trial.

Roman, who is Latino, said he sympathized with the movement's push for reform and said it was appropriate to examine the criminal justice system and work to make it more inclusionary.

"As with many social justice movements you need not only the moderates but the ones who are wishing to push the envelopes," he said.

As for CHAZ's list of demands, Maclin said he rejected the idea that tearing the system down was the answer. "Of course there's racism in the system," he said. But dangerous crimes will continue and there needs to be a system in place to deal with them.

"Who are you going to call when Dylann Roof goes into a black church and kills nine people? You're going to call community activists?" Maclin said. "Assuming you catch [Dylann Roof], and give him a trial, you're going to put him back in the community? It's crazy."