DOJ to seek death penalty in Buffalo shooting case despite Biden 2020 pledge
NAACP LDF head Janai Nelson says the civil rights legal organization is "dismayed" at DOJ's decision, suggesting it lacks "leadership."
The Justice Department announced in a court filing on Friday that it intends to seek the death penalty in Payton Gendron’s federal trial over the 2022 mass shooting in which Gendron murdered 10 people, all Black, at a Buffalo supermarket.
Gendron, who has acknowledged he targeted Black people in his attack, has already been sentenced to life in prison without the possibility of parole for the murders on state charges.
"I did a terrible thing that day,” Gendron said at that sentencing hearing in February 2023. “I shot and killed people because they were Black.”
Attorney General Merrick Garland was required under Justice Department policy to have authorized the decision in the federal case, and the filing was signed not only by prosecutors in the Western District of New York but also by Kristen Clarke, the head of DOJ’s Civil Rights Division, and another lawyer from the division.
The notice in Gendron’s case represents the third death penalty sentence pursued at trial by the Justice Department in the Biden administration despite President Biden’s campaign pledge in 2020 to work to end the federal death penalty altogether. The Justice Department has also argued in appeals courts in defense of existing federal death sentences. And though Garland placed a moratorium on the carrying out of federal executions, the execution spree carried out during the Trump administration sent 13 people to their death and harshly illustrated the limits of a moratorium.1
Friday’s announcement, moreover, is a troubling new step from the Biden administration. It is the first time the administration has made the initial decision to seek death in a case — as opposed to continuing a death penalty prosecution begun under the Trump administration, which has happened twice so far.
The first was the case against Sayfullo Saipov, the man accused in the October 2017 terror attack along a bike path in Manhattan that killed 8 and injured many more. Although initially brought by the Trump administration and authorized by then-Attorney General Jeff Sessions, the trial took place under the Biden administration and was authorized by Garland. Saipov was sentenced to life.
The second was the case against Robert Bowers, who was sentenced to death in August by a federal jury for the deadly 2018 Tree of Life synagogue mass shooting in Pittsburgh that killed 11 in an anti-Semitic attack. Then-Attorney General Bill Barr initially authorized the death penalty prosecution, but Garland continued it.
While there were at least marginal arguments that could be made explaining the decisions to continue those two death penalty prosecutions begun under the Trump administration, the decision to seek the death penalty in Gendron’s case is all on Garland and the Biden administration.
Law Dork covers the death penalty in depth. Subscribe today.
One of the nation’s leading civil rights legal organizations, the NAACP Legal Defense and Educational Fund (LDF), criticized the Justice Department’s decision late Friday afternoon. LDF President and Director-Counsel Janai S. Nelson said in a statement that the organization “roundly condemn[s] the pursuit of the death penalty in all circumstances.“
Calling the 2022 attack “a heinous act of white supremacist violence that had a devastating impact on the Black community in Buffalo and beyond,” Nelson said, “We stand with the Buffalo community as it continues to reel from this painful event and continues to work to heal. We also demand that the federal government pursue an all-of-government approach to hate motivated incidents that leads with prevention of and protection from white supremacist violence. We do not, however, believe that the death penalty is a part of this equation.”
Candidate Biden agreed with that during his 2020 campaign, saying that he opposed the death penalty and would work to eliminate it at the federal level.
Specifically relevant here, Biden’s campaign website explained his view that “such individuals should instead serve life sentences without probation or parole.”
That already is Gendron’s state sentence.
Jamila Hodge, the CEO of Equal Justice USA, echoed Nelson’s remarks, saying in a statement that “[t]he government’s decision to pursue a death sentence will do nothing to address the racism and hatred that fueled the mass murder.”
Specifically, Nelson added, “We are dismayed at the DOJ’s pursuit of the death penalty, as these difficult circumstances are a critical opportunity for the Department to instead show courage, leadership, and a commitment to rooting out white supremacy through means that are not merely punitive but that are effective.”
Further detailing such concerns, Hodge said, “Ultimately, this pursuit will inflict more pain and renewed trauma on the victims’ families and the larger Black community already shattered by loss and desperately in need of healing and solutions that truly build community safety. Imagine if we invested in that instead of more state violence.”
Opposition to punishing hate-motivated violence with the death penalty is not new. It was also a principle pressed by civil rights organization nearly 15 years ago during the Obama administration when penalty enhancements for hate-motivated crimes were being considered in Congress.
As I’ve written about in another context, then-Sen. Jess Sessions proposed a poison-pill amendment to add the death penalty as a possible punishment for certain hate crimes. Although added to the bill in the Senate, it was strongly opposed by civil rights organizations and eventually removed before then-President Barack Obama signed the legislation into law.
Despite that, the Justice Department on Friday repeatedly invoked the hate-motivated element of Gendron’s murders as “non-statutory aggravating factors” that it plans to point to in its argument seeking death for Gendron should he be convicted:
It is not only national organizations that oppose seeking death in such a circumstance, either. As is often true, some family members of the victims in Buffalo oppose the death penalty being used against the killer of their loved one.
Wayne Jones — the son of Celestine Chaney, who was murdered by Gendron — spoke at Gendron’s state sentencing, as reported by the local NBC station, WGRZ.
"I hope they keep you alive so you have to suffer with the thought of what you did for the rest of your life,” Jones said, referencing the federal charges. “To me killing you is the easy way out."
Law Dork brings you independent, in-depth legal and political journalism that seeks to hold government and other public officials accountable. Support Chris Geidner’s reporting by becoming a paid or free subscriber today.
This report was updated after publication to add the sentence about the current moratorium on federal executions.