Both Robert Aaron Long and Ahmad Al Aliwi Alissa were arrested last month for allegedly carrying out high-profile shootings that killed a large number of people. Both crimes have revived our national arms debates.
But only one of the men has a realistic chance of ending up on death row.
Colorado, where Alissa will stand trial, is one of 23 states that have abolished the death penalty. Georgia, where Long was arrested, is one of 27 who still have the punishment in the books. It is also among a smaller subset of 15 states that have executed someone in the past decade, according to the Death Penalty Information Center.
And then there’s California, where Aminadab Gaxiola Gonzalez was arrested last week on suspicion of killing four people, including a child. The death penalty there is more symbolic than reality: California Gov. Gavin Newsom has ordered a moratorium on executions, which have not been carried out in the state since 2006. But local prosecutors often send people to the death row for what amounts to a virtual life. sentence. Orange County District Attorney Todd Spitzer has already told reporters he would consider seeking the death penalty for Gonzalez.
State laws are only part of the picture, because according to investigations, the Justice Department may be able to appeal and seek death sentences for federal crimes. The fates of these men will be dictated by decision makers ranging from local district attorneys to U.S. Attorney General Merrick Garland, and will serve as the latest examples of the strange geographical disparities of the U.S. capital punishment.
The death penalty is disappearing: Although Georgia still executes people, the entire state has only sent one person to the death row since 2015. Across the country, it is now clear that if the death penalty is obtained it has less to do with what you did than where you did it. In 2013, the Death Penalty Information Center reported that all death row inmates across the country came from 20% of counties and that most executions had been produced by only 2% of counties.
Why these counties? Some are populated, meaning there are more murders that could result in death sentences and larger tax bases that can cope with the high cost of capital processes. 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 handed down nationwide since 1972. They found that the counties where lynchings were performed during the Jim Crow early twentieth century era were also more likely to be sentenced to death today. The findings coincide with other studies showing racial disparities in the death row, as well as the higher likelihood of 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 accused of killing ten people at a Boulder grocery store on March 22, voters and elected officials in the liberal county of Colorado where he was arrested have long opposed the death penalty. The current district attorney has even urged President Joe Biden to end this at the federal level.
Long-faced charges in two different Georgia counties. He allegedly killed four people in Fulton County, which includes a large urban strip of Atlanta and where last year the three district attorney candidates vowed never to seek the death penalty. There has been a political shift in the death penalty in many large urban counties, including Philadelphia and Los Angeles.
“What you see is a great 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, a Texas-based defense attorney. expert in death penalty policy. “Actually, there are only about 25 counties in the entire country where the death penalty is periodically requested.”
Long also allegedly killed four people and injured a fifth in Cherokee County, which has never sent anyone to the death row. The county has a Republican district attorney, Shannon Wallace, who pledged in a press release to prosecute the killings “to the extent of the law.” It is still unclear whether Long’s case meets the requirements for a death sentence. A Wallace spokesman would not rule out the possibility and stressed that the crimes are still under investigation.
Much is still unknown about the case (whether more charges will come, whether the families of the victims will go down publicly in one way or another) and local observers predict a “pull and pull” among jurisdictional prosecutors.
“Prosecutors only seek death in a small fraction of cases,” said Anna Arceneaux, executive director of the Georgia Resource Center, which advocates for people in the state’s death row. “This leads to geographical disparities not only between the states, but also between the judicial circuits of Georgia itself.” He said prosecutors must also consider Long’s mental health and background, as well as whether the costs of a death penalty trial could be used to “prevent more violence against Asian Americans.”
Wallace’s office has no record of obtaining death sentences. Scholars have found that the best predictor of whether a county will seek death is if it has done so before. “Once a county follows the path of the death sentence, it gets better,” Baumgartner said. Prosecutors use previous decisions as comparisons; if the county has sent many people to the death row, the bar may seem lower.
This is probably the case in Orange County, California, which has sent more than 80 people to the 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 2015 death penalty case from Oklahoma, U.S. Supreme Court Judge Stephen Breyer wrote in his dissent that capital punishment today can violate the Constitution because it is “arbitrarily imposed” d ‘one place to another. He cited investigations suggesting death sentences could be explained if defense attorneys were adequately funded or if judges had political pressure. One scholar uses the phrase “local muscle memory” to describe how various factors inform each other, creating feedback loops.
Judge Antonin Scalia despised the works 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 do not “have the luxury of deciding” where to kill themselves.
Some prosecutors are fine with the disparities. “Prosecution is, and should be, a local issue,” said Johnny Holmes, a former district attorney for Harris County, Texas, noting that the 10th Amendment to the Constitution delegates power to states. “That’s why I wouldn’t go to national television on this subject. It’s not a matter of anyone but the jeans. “
Holmes’ own office was famous for its culture of seeking death in the 1980s and 1990s, as 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 will get disparate judgments in similar cases between jurisdictions,” said Shannon Edmonds, a staff attorney for the Texas District and County Lawyers Association. “But if each of these local communities believes that these sentences are a fair outcome, then they will be doing justice at the micro level, even if there are disparities at the macro level.”
In theory, some of the geographical disparities could be alleviated by the Justice Department, which can prosecute a death penalty case in any state for federal crimes. Instead of doing the punishment more equitably, however, one study showed that there are also geographical and racial disparities in who receives federal death sentences.
It’s too early to say whether federal prosecutors will try to define any of the shots as a federal crime, but there are many precedents: after the Boston Marathon bombing, they sought the death of Dzhokhar Tsarnaev, though Massachusetts is not worth it of death. They then sought the death of Dylann Roof, for having killed several church attendees in South Carolina, although he could have suffered the same punishment in a state court.
These cases happened under President Barack Obama, even when he expressed suspicion about the final punishment. We still don’t know much about the Biden administration’s approach to the issue, although it pledged on the campaign trail to work to end the practice. Surely there are more massive traits that will test this promise.