Both Robert Aaron Long and Ahmad Al Aliwi Alissa were arrested last month for allegedly committing high-profile shootings that killed a large number of people. 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 is on 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 sentence on the books. It also belongs to a smaller subgroup of 15 states that actually executed someone in the past decade, according to the Death Penalty Information Center.
And then there is California, where Aminadab Gaxiola Gonzalez was arrested last week, suspected of murdering four people, including a child. The death penalty is more symbol than reality there: California Governor Gavin Newsom has issued a moratorium on executions, which have not been carried out in the state since 2006. But local prosecutors often send people to death row for representing a virtual life sentence. Orange County district attorney Todd Spitzer has already told reporters he will consider the death penalty for Gonzalez.
State laws are only part of the picture, as depending on the investigations, the Department of Justice could potentially dive in and demand death sentences for federal crimes. The fates of these men will be determined by decision-makers ranging from local prosecutors to US Attorney General Merrick Garland, serving as the latest examples of the strange geographic differences of the US death penalty.
The death penalty is disappearing: Although Georgia continues to execute people, the entire state has sent only one person to death row since 2015. Across the country, it is now clear that whether you get 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 death row inmates across the country came from only 20 percent of the counties, and the majority of executions had been carried out by only 2 percent of the counties.
Why these provinces? Some are densely populated, meaning there are more murders that can qualify for death sentences and larger tax bases that can handle the high costs of capital processes. Last year, a group of scholars led by Frank Baumgartner of the University of North Carolina-Chapel Hill compiled a database of more than 8,500 death sentences issued across the country since 1972. They found that counties where lynching were conducted during the Jim Crow era in the early 20th century were also more likely to sentence people to death today. The findings are in line with other studies showing racial inequalities on death row, as well as the higher likelihood of a death sentence when the victim is white.
But perhaps the most important factor, in each individual case, is also the simplest: who is the prosecutor?
Even if Colorado hadn’t abolished the death penalty last year, Alissa almost certainly would have avoided that fate. Although he is charged with killing 10 people in a supermarket in Boulder on March 22, voters and elected officials in the liberal province of Colorado, where he was arrested, have long opposed the death penalty. The current prosecutor has even urged President Joe Biden to end it at the federal level.
Long faces attack in two different counties of Georgia. He is said to have murdered four people in Fulton County, including a large urban area of Atlanta and where last year all three prosecutors pledged never to seek the death penalty. Many major metropolitan counties, including Philadelphia and Los Angeles, have seen a political shift away from the death penalty.
“What you see is a great consensus among prosecutors that the death penalty is immoral or not worth the money, or that it has limited public safety benefit,” said Amanda Marzullo, a Texas-based defense attorney and expert on the subject. area of death penalty policy. “There are actually only about 25 rural counties where the death penalty is regularly sought.”
Long is also said to have 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 pledged in a press release to prosecute the murders “to the fullest extent of the law”. It is not yet clear whether Long’s case qualifies for a death sentence. A Wallace spokesperson would not rule out the possibility, stressing that the crimes are still under investigation.
Much about the case – whether further charges will be brought, whether the victims’ families will somehow fall publicly – is still unknown, and local observers are predicting a “tug of war” between prosecutors over jurisdiction.
“Prosecutors seek death in only a small fraction of cases,” said Anna Arceneaux, executive director of the Georgia Resource Center, which defends people on state death row. “This not only results in geographic differences between states, but also between judicial circuits within Georgia itself.” She said prosecutors should also consider Long’s mental health and background, and whether the charges of a death sentence could be used to “prevent further violence against Asian Americans.”
Wallace’s office doesn’t have a long track record of getting death sentences. Scholars have found that the best predictor of whether a province will seek death is whether it has done so before. “Once a county goes down the death row’s path, it gets better at it,” Baumgartner said. Prosecutors use past decisions as comparisons; if the county has sent many 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’s data. The county was responsible for two of the state’s 13 executions over the past half-century, and prosecutor Todd Spitzer has campaigned against the state’s moratorium on executions.
In a landmark 2015 Oklahoma death penalty case, US Supreme Court Justice Stephen Breyer wrote in his dissenting opinion that today’s death penalty could violate the constitution because it is “arbitrarily” imposed from place to place. He cited that research suggests that death sentences could be explained by whether defense attorneys are adequately funded or whether judges are under political pressure. One scientist uses the term ‘local muscle memory’ to describe how different factors inform each other and create feedback loops.
Judge Antonin Scalia disparaged the works Breyer cited as “abolitionist studies.” But former Texas prosecutor Lynn Hardaway pointed out that geographic differences could also be an issue when considering justice for victims who “don’t have the luxury of deciding” where to kill.
Some prosecutors are okay with the differences. “Prosecution is and should be a local issue,” said Johnny Holmes, the former district attorney of Harris County, Texas, noting that the tenth amendment to the constitution delegates power to the states. “That’s why I wouldn’t go over the issue on national television. It’s none other than Texans. “
Holmes’ own office was famous for its culture of death-seeking in the 1980s and 1990s, when Houston became the “capital of the death penalty.” Holmes handed out pens in the form of a syringe, and his prosecutors who had won the death penalty joined an informal “Silver Needle Society.”
“You get disparate judgments in similar cases between jurisdictions,” said Shannon Edmonds, staff attorney with the Texas District and County Attorneys Association. micro level, even if there are differences at the macro level. “
In theory, some geographic differences could be mitigated by the Department of Justice, which can prosecute a death penalty for federal crimes in any state. Rather than making punishment more equitable, a study found that there are also geographic and racial differences in who gets federal death sentences.
It’s too early to say whether federal prosecutors will attempt to describe any of the shootings as a federal crime, but precedents abound: After the Boston Marathon bombing, they sought death for Dzhokhar Tsarnaev, even though they know Massachusetts does not carry the death penalty. . Then they sought death for Dylann Roof for murdering several churchgoers in South Carolina, even though he could have received the same sentence in a state court.
Those cases took place under President Barack Obama, even when he expressed doubts about the ultimate punishment. We still don’t know much about the Biden administration’s approach to the subject, though he promised to work on the campaign trail to end the practice. More mass shootings will certainly test that promise.