On Tuesday, Atlanta’s recently elected district attorney, Fani Willis, announced that she would be seeking the death penalty and hate crimes penalty enhancements against Robert Aaron Long, the 22-year-old man charged in the Atlanta-area shootings at spas that left eight people dead, including six women of Asian descent.
Death row is, almost exclusively, a home for the poor.
Willis’ decision to seek the death penalty is the wrong one — both for her in particular and, as recent history counsels, in cases alleging bias-motivated violence more broadly.
While Willis might believe, as she said on Tuesday, that this is a case that “warrants” seeking the death penalty, advocates from more than a decade ago made clear the dangerous path such a decision can clear for “disproportionate application” of the death penalty “against poor people” and for the “unequal and racially biased application of the death penalty,” to say nothing of larger concerns about the use of the death penalty in any circumstance.
There is a long and well-detailed history showing the dangers the death penalty system poses to people who cannot afford better representation. According to a statement from the Equal Justice Initiative, a legal rights group founded by Bryan Stevenson, “The death penalty is mostly imposed on poor people who cannot afford to hire an effective lawyer.” Death row is, almost exclusively, a home for the poor.
As the institute and many others have detailed, race is inextricably intertwined with the death penalty as well. In one particularly clarifying report, the institute studied the history of racial terror lynchings in America and found that their decline “relied heavily on the increased use of capital punishment imposed by court order following an often accelerated trial.”
The desire of many prosecutors to seek harsh sentences is a well-documented problem.
Follow that through to today, and evidence remains that race — both of the person accused but particularly for the victim — plays a disproportionate role in determining who actually ends up on death row. As The Associated Press starkly summed it up, “Since the death penalty resumed in 1977, 295 Black defendants were executed for killing a white victim, but only 21 white defendants were executed for the killing of a Black victim even though Black people are disproportionately the victims of crime.”
When Willis was running to serve as Fulton County’s prosecutor in 2020, she made clear that she saw significant problems with the death penalty, telling the Georgia Justice Reform Partnership that she opposed the death penalty, saying at one forum that “life without parole is an appropriate remedy” and that she “cannot foresee a case” in which the death penalty would be appropriate.
Less than a year later, having won election to the office, Willis has she found such a situation in the Long case.
The desire of many prosecutors to seek harsh sentences is a well-documented problem. The practice can be coercive, forcing people to plead guilty in circumstances where they would ordinarily go to trial to take the most significant charges off the table. The practice has thrown fuel on the fire of mass incarceration, filling our prisons with an increasingly aging population.
But here, in a case where charges of hate-motivated violence are also at issue, the practice is particularly ill-suited: The death penalty in America is both historically and presently a biased system, and using that most extreme punishment to prosecute bias-motivated crime only serves to root that biased system more deeply in our lives.
More than a decade ago, this question played out on a national stage. The 1998 killings of Matthew Shepard, a gay student in Laramie, Wyoming, who was left for dead in a remote part of town after a severe beating, and of James Byrd Jr., a Black man dragged to his death behind a pickup truck in Jasper, Texas, were motivating factors behind legislation enhancing federal hate crimes penalties.
Using this case to further entrench the death penalty in our nation and in our lives does not — and cannot — advance those goals.
After the legislation passed the House in the first year of Barack Obama’s presidency, it faced opposition in the Senate and then an amendment from a senator strongly opposed to the legislation. The amendment sought to add the death penalty as a possible enhancement for certain hate crimes, and it was proposed by then-Sen. Jeff Sessions, R-Ala.
Even then, when the death penalty was more frequently used across the nation than it is today, the response from groups supporting the legislation was clear: No. The amendment was considered a “poison pill” amendment from Sessions that would hurt its chances of passage. A leading advocacy organization that backed the bill, the Leadership Conference on Civil Rights (now the Leadership Conference on Civil and Human Rights), organized a letter “strongly” opposing Sessions’ amendment. Among the signatories were the NAACP and leading LGBT groups backing the legislation, including the Human Rights Campaign and the National Gay and Lesbian Task Force Action Fund. “The [Hate Crimes Prevention Act] was first introduced in 1997, but no version of the bill has ever included the death penalty. Senate and House sponsors of the bill and the very broad coalition of supporters have always opposed adding the death penalty to this legislation,” the groups wrote. “Supporters of the HCPA should oppose this amendment. The death penalty is irreversible and highly controversial — with significant doubts about its deterrent effect and clear evidence of disproportionate application against poor people. Moreover, there are serious, well-documented concerns about unequal and racially biased application of the death penalty.” Although the amendment was included in the Senate version of the bill, the groups continued to press for the provision’s removal and it was later removed in House-Senate negotiations over the legislation. The legislation was signed into law by Obama in late 2009 with no death penalty provision. Now, more than a decade later, Willis is facing a similar question in Atlanta that federal lawmakers and advocates had to face in 2010: Should the death penalty be the response to bias-motivated violence? The answer now should be the same as they concluded then: no. The March 16 spa shootings must be prosecuted, accountability for the killings must be sought, and the effect of bias in the attacks must be addressed. But using this case to further entrench the death penalty in our nation and in our lives does not — and cannot — advance those goals.
Chris Geidner
Chris Geidner is a journalist and MSNBC columnist whose Law Dork newsletter covers the Supreme Court, law and politics. His more than two decades in journalism include widely recognized coverage of LGBTQ issues, the criminal legal system and other complex legal and political questions. Geidner also contributes to Grid and Bolts and previously worked as the Supreme Court correspondent and legal editor at BuzzFeed News, as well as for The Appeal and Metro Weekly. 
