Both Robert Aaron Long and Ahmad Al Aliwi Alissa were arrested last month for allegedly firing gunfire 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 correcting his death.
Colorado, where Alissa will be tried, is one of 23 states that have abolished the death penalty. Georgia, where Long was arrested, is one of 27 people still serving their sentences. It is also in a subset of less than 15 states that have actually 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 frequently send people to death for what virtual life means. sentence. Orange County District Attorney Todd Spitzer has already told reporters he will consider requesting the death penalty with Gonzalez.
State laws are only part of the picture, because, depending on investigations, the Justice Department may be able to pass and seek death sentences for federal crimes. The fate of these men will be dictated by decision-makers, from local prosecutors to US Attorney General Merrick Garland, and will serve as the latest examples of the strange geographical disparities of US capital punishment.
The death penalty is disappearing: although Georgia is still executing people, the entire state has sent a single person to death in 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-sentenced detainees across the country came from only 20 percent of counties, and most executions were produced by only 2 percent of counties.
Why these counties? Some are populated, which means there are more crimes that could qualify for death sentences and larger tax bases that can cope with the high cost of capital lawsuits. Last year, a group of scientists led by Frank Baumgartner of 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 in which they were Performed lynchings during the Jim Crow era in the early twentieth century was also more likely to sentence people to death today. The findings are consistent with other studies showing racial disparities in the death sentence, as well as the higher 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 accused of killing 10 people in 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 it at the federal level.
Long-faced accusations in two different counties in Georgia. He allegedly killed four people in Fulton County, which includes a large urban area of Atlanta and where last year all three prosecutors vowed never to seek the death penalty. There has been a political shift from the death penalty in many large, urban counties, including Philadelphia and Los Angeles.
“What you see is a broad consensus among prosecutors that the death penalty is either immoral, undeserved, or limited to public safety,” said Amanda Marzullo, a Texas defense attorney and policy expert. on the death penalty. “There are really only about 25 counties nationwide where the death penalty is regularly sought.”
Long also allegedly killed four people and injured a fifth in Cherokee County, who never sent anyone to death. The county has a Republican prosecutor, Shannon Wallace, who promised in a press release to pursue the criminal investigation “to the fullest extent of the law.” It is not yet clear whether Long’s case qualifies for a death sentence. A Wallace spokesman would not rule out the possibility and stressed that the crimes are still being investigated.
Many things about the case – whether other accusations are coming, whether the victims’ families will go down in public in one way or another – are still unknown, and local observers predict a “war battle” between prosecutors.
“Prosecutors seek death in only a small number of cases,” said Anna Arceneaux, executive director of the Georgia Resource Center, which defends people on the state’s death corridor. “This leads to geographical disparities not only between states but also in Georgia’s courts.” She said prosecutors must also consider Long’s mental health and background, and whether the costs of a death sentence could be used instead to “prevent violence against Asian Americans.”
Wallace’s office doesn’t have a long death sentence record. Researchers have found that the best predictor of whether a county will seek death is whether it has done so before. “Once a county goes on the death penalty, it improves,” Baumgartner said. Prosecutors use past decisions as comparisons; if the county sent many people to correct the death, the bar may seem smaller.
This is likely the case in Orange County, California, which has sent more than 80 people to death in the 1970s, according to Baumgartner. The county has been responsible for two of the state’s 13 executions in the past half century, and prosecutor Todd Spitzer has campaigned against the state’s moratorium on executions.
In a reference case for the 2015 death penalty in Oklahoma, US Supreme Court Judge Stephen Breyer wrote in his opinion that the death penalty may violate the Constitution today because it is “arbitrarily imposed” from place to place. He cited research suggesting that death sentences could be explained by whether defense lawyers were adequately funded or whether judges faced political pressure. One scholar uses the phrase “local muscle memory” to describe how different factors inform each other, creating feedback loops.
Judge Antonin Scalia despised the works that Breyer cited as “abolitionist studies.” But former Texas Attorney Lynn Hardaway pointed out that geographical disparities can also be an issue when considering justice for victims who do not “have the luxury of deciding” where they will be killed.
Some prosecutors are fine with the differences. “Prosecution is and should be a local issue,” said Johnny Holmes, a former Harris, Texas district attorney, noting that the 10th Amendment to the Constitution delegates state power. “That is why I would not go to the national television about this issue. It’s none other than the Texans’ problem. ”
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 distributed syringe-shaped pens, and his prosecutors who won the death penalty joined an informal “Silver Needle Society.”
“You will receive disparate sentences in similar cases between jurisdictions,” said Shannon Edmonds, a lawyer for the Texas District and Bar Association. “But if each of those local communities considers these sentences to be a fair outcome, then justice will be done. at the micro level, even if there are disparities at the macro level. “
In theory, some of the geographical disparities could be mitigated by the Justice Department, which can pursue a death penalty case in any state for federal offenses. Instead of making the punishment more equitable, however, one study showed that there are geographical and racial disparities in who receives federal death sentences.
It is too early to say whether federal prosecutors will try to define any of the shootings as a federal crime, but there is a lot of precedent: after the Boston Marathon bombing, they sought the death of Dzhokhar Tsarnaev, even though Massachusetts has no punishment. with death. . They then sought the death of Dylann Roof, for the murder of several churches in South Carolina, even though they could have faced the same punishment in a state court.
These cases took place under President Barack Obama, even as he expressed doubts about the final punishment. We still don’t know much about the Biden administration’s approach to this issue, although he has pledged to work to end the practice. More mass shootings will definitely test this promise.