Both Robert Aaron Long and Ahmad Al Aliwi Alissa were arrested last month for allegedly carrying out high-profile shootings in which large numbers of people were killed. Both crimes have revived our national debates on weapons.
But only one of the men has a real chance of ending up on death row.
Colorado, where Alissa will be tried, is one of 23 states that abolished the death penalty. Georgia, where Long was arrested, is one of 27 that still have punishment on the books. It is also among a smaller subset of 15 states that have actually executed someone in the last decade, according to the Death Penalty Information Center.
And then there is California, where Aminadab Gaxiola González was arrested last week, suspected of killing four people, including a child. The death penalty there is more symbol than reality: California Governor Gavin Newsom has ordered a moratorium on executions, which have not been carried out in the state since 2006. But local prosecutors frequently refer to people to death row for what amounts to a virtual life. sentence. Orange County District Attorney Todd Spitzer has already told reporters that he will consider seeking capital punishment for Gonzalez.
State laws are only part of the picture, because depending on the investigations, the Department of Justice can step in and seek death sentences for federal crimes. The fate of these men will be dictated by decision-makers ranging from local district attorneys to United States Attorney General Merrick Garland, and they will serve as the latest examples of the strange geographic disparities of the American capital punishment.
The death penalty is disappearing: Although Georgia still executes people, the entire state has only sent one person to death row since 2015. Across the country, it is now clear that receiving the death penalty has less to do with what you did than where you did it. In 2013, the Death Penalty Information Center reported that all state prisoners on death row nationwide came from just 20 percent of counties, and the majority of executions had occurred in just 2 percent. of the counties.
Why these counties? Some are populous, which means there are more murders that could qualify for death sentences and larger tax bases that can handle the high cost of capital lawsuits. Last year, a group of scholars led by Frank Baumgartner at the University of North Carolina-Chapel Hill compiled a database of more than 8,500 death sentences passed across the country since 1972. They found that the counties where they were taken lynchings during the Jim Crow period in the early 1900s were also more likely to put people to death today. The findings are in line with other studies showing racial disparities on death row, as well as an increased likelihood of a death sentence when the victim is white.
But perhaps the most important factor, in any individual case, is also the simplest: Who is the prosecutor?
Even if Colorado hadn’t abolished the death penalty last year, Alissa would almost certainly have avoided that fate. Although he is charged with killing 10 people at a Boulder grocery store on March 22, voters and elected officials in liberal Colorado County where he was arrested have long opposed capital punishment. The current district attorney has even urged President Joe Biden to end it at the federal level.
Long face charges in two different Georgia counties. He allegedly killed four people in Fulton County, which includes a large urban swath of Atlanta and where last year the three district attorney candidates vowed never to seek the death penalty. There has been a political shift away from the death penalty in many large urban counties, including Philadelphia and Los Angeles.
“What you see is a strong consensus among prosecutors that the death penalty is immoral or not worth the funds or that it provides a limited benefit to public safety,” said Amanda Marzullo, defense attorney and criminal policy expert. Texas-based death. “In reality, there are only about 25 counties in the entire country where the death penalty is sought on a regular basis.”
Long also allegedly killed four people and injured a fifth in Cherokee County, which has never sent anyone to death row. The county has a Republican district attorney, Shannon Wallace, who promised in a press release to prosecute the killings “to the full extent of the law.” It is not yet clear whether Long’s case qualifies for a death sentence. A spokesman for Wallace did not rule out the possibility, emphasizing that the crimes are still under investigation.
Much about the case – whether more charges are looming, whether the victims’ families will come out publicly one way or another – is still unknown, and local observers predict a “tug of war” among prosecutors over jurisdiction.
“Prosecutors only seek death in a small fraction of cases,” said Anna Arceneaux, executive director of the Georgia Resource Center, which defends people on the state’s death row. “This results in geographic disparities not only between states, but also between judicial circuits within Georgia itself.” He said prosecutors should also consider Long’s mental health and record, as well as whether the expense of a death penalty trial could be used instead to “prevent further violence against Asian Americans.”
Wallace’s office does not have a long history of death sentences. Scholars have found that the best predictor of whether a county will seek death is whether it has done so before. “Once a county takes the death sentence, it gets better,” Baumgartner said. Prosecutors use past decisions as comparisons; If the county has sent a lot of people to death row, the bar may seem lower.
This is likely the case in Orange County, California, which has sent more than 80 people to death row since the 1970s, according to Baumgartner data. The county has been responsible for two of the state’s 13 executions in the past half century, and District Attorney Todd Spitzer has campaigned against the state’s moratorium on executions.
In a landmark 2015 death penalty case in Oklahoma, United States Supreme Court Justice Stephen Breyer wrote in dissent that capital punishment today can violate the Constitution because it is “arbitrarily imposed” from place to place. other. He cited research that suggested death sentences could be explained by whether defense attorneys were adequately funded or judges faced political pressure. One scholar uses the phrase “local muscle memory” to describe how various factors inform each other, creating feedback loops.
Justice Antonin Scalia disparaged the works that Breyer cited as “abolitionist studies.” But former Texas prosecutor Lynn Hardaway noted that geographic disparities can also be a problem when considering justice for victims, who “cannot afford to decide” where they are killed.
Some prosecutors agree with the disparities. “Prosecution is, and should be, a local matter,” said Johnny Holmes, a former Harris County, Texas, district attorney, noting that the 10th Amendment to the Constitution delegates power to the states. “That is why it would not appear on national television on the subject. It’s nobody’s problem but Texans. “
Holmes’s own office was famous for its death-seeking culture in the 1980s and 1990s, when Houston became the “capital of capital punishment.” Holmes handed out syringe-shaped pens and his prosecutors who won death sentences joined an informal “Silver Needle Society.”
“You’ll get disparate sentences in similar cases across jurisdictions,” said Shannon Edmonds, an attorney with the Texas County and District Bar Association. “But if each of those local communities thinks those sentences are a fair outcome, then they are doing justice at the micro level, even if there are disparities at the macro level.”
In theory, some of the geographic disparities could be mitigated by the Department of Justice, which can prosecute a death penalty case in any state for federal crimes. However, instead of making the punishment more equitable, one study showed that there are also geographic and racial disparities in who receives federal death sentences.
It is too early to say whether federal prosecutors will attempt to define any of the shootings as a federal crime, but there are many precedents: After the Boston Marathon bombing, they sought the death of Dzhokhar Tsarnaev, although Massachusetts does not have the penalty of death. . They then sought the death of Dylann Roof, for killing several parishioners in South Carolina, even though he could have faced the same punishment in state court.
Those cases occurred under President Barack Obama, even as he expressed doubts about the maximum punishment. We still don’t know much about the Biden administration’s approach to the issue, although it did pledge in the election campaign to work to end the practice. More mass shootings will surely put that promise to the test.