VlogB

The Justice Department is nearing a decision over whether to pursue the death penalty for the White gunman who slaughtered 10 Black people at a Buffalo grocery store last year, a racist attack that could lead to the first new capital prosecution authorized by Attorney General Merrick Garland.

Federal prosecutors told a judge in late November that a capital review committee — composed of senior Justice officials in Washington and prosecutors in field offices — has made a confidential recommendation to Garland’s top deputy, Lisa Monaco, ahead of a final decision from Garland.

Payton Gendron, 20, faces charges on hate crimes and weapons violations for the May 2022 massacre. He already is serving a sentence of life in prison without parole after pleading guilty to New York state murder charges. Defense attorneys said he would plead guilty to the federal counts if prosecutors forgo the death penalty.

Advertisement

Garland’s decision is freighted with political significance over whether he believes capital punishment is a just outcome for perpetrators of the nation’s deadliest mass killings. The attorney general has echoed concerns about the death penalty from civil rights groups and Democrats, including President Biden, who say it disproportionately targets minorities and the poor.

But nearly three years into his tenure, Garland has sent conflicting signals about his stance.

Prosecutors this year took two death penalty cases Garland inherited to trial, while the attorney general has withdrawn the department’s intent to seek capital punishment in 32 others that were also filed before he took office. In 2021, he issued a moratorium on carrying out federal executions, which remains in place. But the Justice Department continues to aggressively fight appeals from the 40 inmates who are on federal death row.

Advertisement

Outside observers say Garland’s decision in the Gendron case could further clarify whether the Biden administration is closing in on defining a new “worst of the worst” standard, in which the death penalty is reserved for mass killers in an age of increasing acts of domestic terrorism. The two cases that went to trial this year, like the Buffalo case, involved such crimes.

But death penalty critics say that continuing to pursue new capital prosecutions, and leaving dozens of others on death row, could be setting the stage for a slew of additional federal executions if Republicans win the White House in 2024.

Some of Biden’s potential GOP opponents have touted support for the death penalty and sought to cast themselves as tougher than Biden on violent crime. The Trump administration ended a 17-year hiatus on federal executions, putting 13 prisoners to death in the final six months of Donald Trump’s term. Florida Gov. Ron DeSantis (R) signed a state law this year lowering Florida’s death penalty threshold from a unanimous jury vote to a supermajority.

Advertisement

“The death penalty was going away as a presidential political issue, but Trump brought it back in a big way,” said Ruth Friedman, director at the Federal Capital Habeas Project, which has defended death row inmates.

The Justice Department under Garland “has continued to defend every sentence on death row,” Friedman said. “What that means is that every case is moving closer to execution, and this administration is making it easier for another administration to come in and do another bloodbath.”

A Justice Department spokeswoman declined to comment.

Most executions take place at the state level, but death penalty opponents have pressed the Biden administration to set a federal example by curtailing capital punishment. A Gallup survey last month found 53 percent of Americans support the death penalty, but just 47 percent believe it is applied fairly, the lowest number since the polling firm began tracking the issue in 2000.

Advertisement

One key reason is racial disparity: Fewer than half of the 40 men on federal death row are White, according to the Death Penalty Information Center, even though 59 percent of the U.S. population is White, according to the U.S. Census Bureau. Fifteen of the death row inmates are Black, or nearly 40 percent, even though Black people make up 14 percent of the U.S. population. (Two other men, one White and one Black, have had their death sentences vacated by federal judges and are awaiting resentencing. It is unclear whether the Justice Department will continue to seek capital punishment in their cases.)

In announcing his moratorium on carrying out federal executions, Garland directed the Justice Department to review changes to death penalty protocols made by the Trump administration, a process that is ongoing. But he left in place the government’s ability to seek a death sentence.

In March, jurors split over capital punishment for Sayfullo Saipov, who killed eight people on a New York City bike path in 2017, resulting in a mandatory sentence of life in prison. In August, jurors unanimously supported a death sentence for Robert G. Bowers, a White man who fatally shot 11 people in a Pittsburgh synagogue in 2018.

Advertisement

“In the absence of a policy [from Biden] saying, ‘We’re not seeking death,’ DOJ is making individual judgments,” said Robert Dunham, director of the Death Penalty Policy Project at Phillips Black, a nonprofit public interest legal practice, and an adjunct professor at Temple University. “They have the discretion not to do it, but as long as the death penalty remains on the table, it’s something Garland and the DOJ are considering.”

Justice Department standards on federal death penalty called confusing

The length and scope of the Justice Department’s deliberations in Gendron’s case — which have lasted 18 months and included private consultations between the capital review committee and defense attorneys in September — suggest that at least some Justice officials involved in the process are in favor of seeking the death penalty, according to former prosecutors and attorneys for the victims’ families.

Gendron’s crimes echo the case of Dylann Roof, a White man on federal death row for the fatal shooting of nine Black parishioners at a Charleston, S.C., church in 2015. Both young adults at the time of their attacks (Roof was 21, and Gendron was 18), they were radicalized online by white supremacist propaganda and targeted Black victims in public settings.

Advertisement

President Barack Obama’s Justice Department split over whether to seek death for Roof, with opposition from the civil rights division, then led by Vanita Gupta. She now serves as associate attorney general, the department’s third-ranking official. (Gupta announced this month that she will step down in February.)

In Roof’s case, Attorney General Loretta E. Lynch chose to move forward with a capital prosecution, stating that “the nature of the alleged crime and the resulting harm compelled this decision.” In 2021, under Garland, the Justice Department opposed an appeal from Roof’s lawyers, who said he was wrongly allowed to represent himself at trial. A federal appeals court upheld Roof’s sentence, and the Supreme Court chose not to take up the case.

Former federal prosecutor Nathan S. Williams, who helped prosecute Roof, said it’s difficult to draw conclusions from one capital decision to another because authorities weigh so many variables: input from victims’ families, the defendants’ mental health and criminal record, and whether they have been convicted in state court and demonstrated remorse.

Advertisement

“It feels a lot like the most egregious cases still get the death penalty,” Williams said. “Maybe that standard is getting its own definition from this administration about what is the ‘worst of the worst.’”

The American Psychological Association last year called on U.S. lawmakers to ban capital punishment for anyone who was younger than 21 when they committed their crime, citing studies that show their brains are still developing at that stage of life. Unlike Roof, Bowers and Saipov, who were tried first in federal court, Gendron has already been convicted on state charges. Also unlike the others, he apologized to the victims’ families at his sentencing hearing in February.

Though Gendron did not offer an insanity defense in his state case, legal analysts said his lawyers are likely to raise mental health issues as a mitigating factor against the death penalty. In February, Patrick Crusius, a White man, pleaded guilty in the killing of 23 people at a Walmart in El Paso in 2019. Federal authorities supported a sentence of life in prison after medical experts concluded Crusius has serious mental deficiencies.

Advertisement

The emotional toll of a death penalty trial for the Buffalo community also could weigh on Garland’s decision. The victims’ families are split over whether Gendron should face the death penalty, said John Elmore, a Buffalo attorney who represents some of them.

Garland weighs racial equity as he considers death penalty in Buffalo

The families have sued social media companies, body armor manufacturers and a gun shop, contending that those entities facilitated the shooting. But federal prosecutors blocked their request for access to criminal files, which some families viewed as a sign that authorities are anticipating a death penalty trial and do not want to release evidence.

“I would make a reasonable guess that the panel that made a recommendation [to Garland] would seek the death penalty,” Elmore said.

Civil rights groups have criticized the Biden administration for not taking a clearer stand against capital punishment.

During his confirmation hearing, Garland cited the exonerations of some death row prisoners and echoed concerns from civil rights groups that the death penalty has a “disparate impact on Black Americans and communities of color.”

But he said he had no regrets about his role, as a senior Justice official, in overseeing the federal prosecution of Timothy McVeigh, who was executed in 2001 for killing 168 people in the bombing of a federal building in Oklahoma City in 1995.

Garland said it is up to Congress to assess the fairness of the death penalty. The Justice Department’s review of protocol changes under Trump is focused on rules that allow lethal injections with a single drug, pentobarbital, which some medical experts have said causes undue suffering, and permit federal authorities to use alternative methods of execution in state facilities that are equipped for it.

“There is a disconnect between what Garland lays out as the big problems and big concerns with the fairness of the death penalty,” said Megan McCracken, a federal public defender. “He is absolutely right about those things. But there is a disconnect between those and what these reviews can look at. They are much more limited.”

ncG1vNJzZmivp6x7uK3SoaCnn6Sku7G70q1lnKedZLuiwMiopZqkXaiypMHRoquyZ2Jlf3R7kGtma3BfnK6zuMCnm2aapZuzorjOZpuemaSderGxzZqjrbFdmsWmr9StoKimo2Q%3D