WASHINGTON – Just a few months after he took office, Attorney General Merrick Garland issued a moratorium to halt federal executions — a stark contrast after his predecessor carried out 13 in six months. Under Garland’s watch and a president who vowed to abolish the death penalty, the Justice Department took on no new death penalty cases.
That changed Friday as federal prosecutors said they would seek capital punishment for a white supremacist who killed 10 Black people at a Buffalo supermarket. The decision doesn't change the halt on federal executions, but Garland's first approval of a new capital prosecution opens a new chapter in the long and complicated history of the death penalty in the U.S.
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Those complexities have been on full display in recent years. President Joe Biden campaigned in part on a promise to abolish it but has taken few concrete steps to do so. The Justice Department has pulled back significantly on the use of capital punishment under Garland's leadership, but also has shown a continued willingness to use it in certain cases.
White House spokesman Andrew Bates didn’t take issue with the decision in the Buffalo case Friday, saying the president has discussed his views on the issue and would leave individual cases to the appropriate authorities. The Justice Department, in keeping with its practice on ongoing cases, did not explain its decision.
“It’s a little hard to identify a consistent approach," said Eric Berger, a law professor at the University of Nebraska. “This Justice Department is far more reluctant to use the death penalty, certainly than the Trump administration was, and far more cognizant of the problems, but it’s not willing to throw away the death penalty altogether."
Under Garland, the Justice Department has reversed more than two dozen decisions to seek the death penalty, including for alleged gang members accused in the deaths of two teens in New York. Garland has authorized the continuation of only two death penalty cases he inherited, including another mass shooting at a Pittsburgh synagogue motivated by hate.
Robert Bowers was sentenced to death in August for carrying out the deadliest antisemitic attack in U.S. history when he shot and killed 11 worshipers in 2018. The other case was against Sayfullo Saipov, a 35-year-old Islamic extremist convicted of maniacally racing a truck along a popular New York City bike path, killing eight people and maiming others. A split among jurors meant he was not sentenced to the death penalty.
In Buffalo, 20-year-old Payton Gendron pleaded guilty to driving across the state to target a largely Black neighborhood and carrying out the attack with a semi-automatic weapon marked with racial slurs and phrases including “The Great Replacement,” a reference to a conspiracy theory that there’s a plot to diminish the influence of white people.
“It’s a mass shooting, and mass shootings have only increased over the years and gotten worse. It was also racially motivated, and that seems to be a huge factor here,” said Deborah Denno, a Fordham University law professor who studies the death penalty. “Garland is sort of indicating what he thinks is important, what would drive him to ask for the death penalty.”
In changes made under Garland, the Justice Department’s manual instructs prosecutors to give more weight to cases involving the most harm to the country.
Still, the department chose not to pursue the death penalty in another racist mass shooting targeting Hispanic people that left 23 people dead in an El Paso Wal-Mart. In that case, 24-year-old shooter Patrick Crusius was diagnosed with a severe mental health condition, which may have played a role.
There's been no public evidence of mental illness so far in the Gendron case. But courts are increasingly questioning severe punishments for young defendants amid new research on brain development, said Robin Maher, executive director of the Death Penalty Information Center. Gendron has also pleaded guilty and expressed “sincere remorse," and been sentenced to multiple life sentences without the possibility of parole, she said.
“This federal trial will take a long time and they will cost taxpayers millions of dollars in pursuit of the very same result that exists today, which is that Mr. Gendron will die in prison,” Maher said.
Legal Defense Fund President Janai Nelson condemned the decision, saying that the history of the death penalty has been rife with racial discrimination. “Justice for the many Black people that were killed in this horrendous attack does not begin with pursuit of the death penalty,” she said. “In times rife with extreme violence, we cannot resort to capital punishment as a solution.”
Death penalty opponents have long argued Biden has done little to fulfill his campaign promise and want him to commute sentences of those on federal death row. During his presidency, the Justice Department has fought vigorously in courts to maintain the sentences of death row inmates, an Associated Press review of dozens of legal filings found. And while the moratorium on federal executions Garland announced in 2021 means no federal inmates will be put to death while it’s in place, there have been no public signs that a review of execution policies that he ordered at the same time is nearing completion.
In Buffalo, the victims' loved ones have had different feelings on whether they thought prosecutors should pursue the death penalty. The death penalty decision-making process calls for a lengthy review involving the U.S. Attorney overseeing the case and a review committee.
“Garland is extremely exacting and meticulous and nonpartisan and careful,” Berger said. “Whether or not you agree with his ultimate decision, he’s going to play the process exactly by the book.”
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This story has been corrected to reflect that the quote in the 13th paragraph about the length and cost of a federal trial for Payton Gendron is from Robin Maher, executive director of the Death Penalty Information Center, and not another staffer at the center.