The Biden administration’s pledge to pursue racial equity in the criminal justice system is facing a crucial test: whether federal prosecutors will seek the death penalty for the self-avowed white supremacist charged with slaughtering 10 Black people in a Buffalo grocery store in May.
Some survivors and family members of those killed told Attorney General Merrick Garland during a private meeting in June that they are supportive of bringing a capital case against the 18-year-old suspect, Payton Gendron, according to people involved in the discussion. Their stance conflicts with the long-standing position of civil rights advocates, who have generally opposed the death penalty out of concerns it is unjust and disproportionately used against racial minorities.
“There’s a mixed feeling about it. Some say, ‘Yeah, that should be in play,’” said Kristen Elmore-Garcia, a Buffalo-based lawyer who represents one of the families.
But Garland, under pressure from civil rights groups, issued a moratorium last summer on federal executions, after the administration of President Donald Trump carried out 13 in the final six months of his presidency. As heinous as the Buffalo killings were, Black civil rights leaders say, seeking to execute the gunman would represent a setback in their efforts to abolish capital punishment.
“The reality for us is that the system is too often infused with racial bias. That doesn’t change because someone who is White, and who perpetrated violence against Black people, is put to death,” said Maya Wiley, president of the Leadership Conference on Civil and Human Rights.
President Joe Biden opposed the death penalty during his 2020 campaign, but he has not pushed forcefully for a blanket federal ban on executions since taking office. His administration is under pressure to do more to confront rising white supremacy, a spike in hate crimes and a wave of gun violence.
While Garland’s moratorium does not ban prosecutors from seeking the death penalty, the Justice Department has not filed a notice to seek capital punishment under his leadership, officials said.
Experts said Garland’s decision in Buffalo could send a strong signal to state legislatures. Twenty-three states have abolished the death penalty, while three - Oregon, Pennsylvania and California - have a moratorium against it, according to the nonprofit Death Penalty Information Center. Robert Dunham, executive director of that center, said data suggests the death penalty is not a deterrent to homicides or mass shootings, given higher murder rates in many states that allow executions.
“The White House has expressed a preference to do away with the federal death penalty, but it hasn’t set a policy,” Dunham said. “In the absence of a policy, [Garland] has to decide, and there are countervailing interests.”
Federal prosecutors have charged Gendron with 26 hate crime counts. But it is an additional gun-related charge that carries the potential penalty of death. He also faces state-level first-degree murder and hate crimes charges in New York, which does not allow state-sponsored executions.
In a statement, White House spokesman Abdullah Hasan said Biden supports Garland’s moratorium and has been clear about his concerns over whether the death penalty is “consistent with the values fundamental to our sense of justice and fairness.” But Biden also believes the Buffalo shooter must be held accountable for “the racially-motivated act of domestic terrorism.”
At Gendron’s initial court appearance, U.S. Magistrate Judge H. Kenneth Schroeder assigned him a federal public defender and highlighted the higher taxpayer costs associated with capital cases, which require more legal expertise. He urged the Justice Department to make a relatively quick decision on whether to pursue the death penalty. U.S. officials say the decision process could take a year or more.
During a June trip to Buffalo, Garland said prosecutors will follow long-standing protocols to make their recommendation, which requires his approval, and that they will seek input from the survivors and victims’ families. “We view confronting hate crimes as both a legal and moral obligation,” Garland said.
Making matters more complex, some of the attorneys representing the families are advocates who vocally oppose the death penalty, including Ben Crump, a prominent civil rights attorney, and Terrence M. Connors, a Buffalo trial lawyer. So do some of Garland’s top deputies, including Associate Attorney General Vanita Gupta, who joined him in Buffalo.
In 2020, Gupta, then serving as the head of the Leadership Conference, tweeted, “Abolish the death penalty,” in reference to the case of Brandon Bernard, a Black man executed that year for his role in the 1999 abduction and murder of two White youth ministers in Fort Hood, Texas.
“That was not my mother or father or son or daughter who was killed, so I would have to respect their wishes,” Crump said of the Buffalo victims’ families. “But I will be honest with them in terms of my opposition to the death penalty.”
Given Garland’s moratorium on executions, Crump said, federal prosecutors “would have to explain their position as to why they are changing their stance” if they seek death for the alleged Buffalo gunman.
In 2020, after the Trump administration ended a 17-year hiatus for federal executions, the Death Penalty Information Center reported that racial minorities have been overrepresented on death row and that the killers of White people were more likely than the killers of Black people to face the death penalty.
In his memo last summer, Garland ordered a review of Trump administration changes to policies and procedures on lethal injection. That review is ongoing.
Garland gained national acclaim in the 1990s for helping lead the Justice Department’s successful capital conviction of Oklahoma City bomber Timothy McVeigh, who was put to death in 2001. During his confirmation hearing last year, Garland said he stands by the outcome of that case but has since developed reservations over the death penalty.
At the hearing, Sen. Tom Cotton, R-Ark., cited the case of Dylann Roof - a White man sentenced to death for fatally shooting nine Black parishioners at a church in Charleston, S.C., in 2015 - and asked whether Garland would pursue capital punishment in a similar case. Garland responded that it would depend on the Biden administration’s policy.
The Justice Department has continued to back Roof’s death sentence, which was upheld by a federal appellate court last summer. The department also is seeking the death penalty for Robert Bowers, a White man accused of killing 11 people and wounding six in an antisemitic attack at the Tree of Life synagogue in Pittsburgh in 2018.
Last year, members of the Dor Hadash congregation - which shares building space with Tree of Life - urged Garland to pursue a plea deal with Bowers, whose defense team has said he would accept life in prison if the capital case was dropped. Jon Pushinsky, who drafted the letter, said the congregation is hoping to spare victims’ families additional trauma from the long, drawn-out process of a capital trial. But the Justice Department has not indicated any plans to change course, he said.
In opposing the death penalty, some opponents cite cases in which convicts on death row are exonerated in light of new evidence. But legal experts said the Buffalo case appears to lack ambiguity: The suspected gunman allegedly wrote a 180-page screed denouncing Black people, shared plans for the attack on social media and live-streamed some of the shooting.
“Congress passed the law allowing the federal death penalty for the most heinous of crimes. If the Buffalo massacre doesn’t qualify, then it’s hard to see what would,” Cotton said in a statement. “Merrick Garland and President Biden ought to put aside their personal feelings, enforce the law, and focus on securing justice for the victims of this horrific crime.”
The Rev. Al Sharpton, a death penalty opponent who delivered eulogies for two Buffalo victims, said he has not discussed the issue with the families. But Sharpton, president of the National Action Network, emphasized that his group’s opposition to capital punishment won’t change in Gendron’s case.
“This is a moral and civil rights issue,” Sharpton said. “You can’t have case-by-case morality. You can’t have transactional morality. You have to have transformative morality.”
Garland has not been completely clear about his intent in pausing executions, said Nathan S. Williams, a former assistant U.S. attorney who helped prosecute Roof. Though Garland cited technical issues concerning lethal injection in his memo announcing the moratorium, he also referenced fundamental unease about the death penalty’s “disparate impact on people of color.”
Garland’s moratorium “does not resolve what was posited in that memo: ‘Is the death penalty fundamentally unfair in its application?’ If you believe that, you would not pursue it” in Gendron’s case, Williams said.
Attorney John Elmore is helping to represent the family of one of the Buffalo victims, assisting his daughter and fellow lawyer, Kristen Elmore-Garcia. He also has experience defending an accused murderer in a capital case.
In 1998, during a 10-year window in which New York reinstated the possibility of capital punishment, Elmore fought against a death sentence for Jonathan Parker, a Black man who was accused of shooting two police officers, one fatally. A jury sentenced Parker to life in prison.
But Elmore, who is Black, said he believes the death penalty remains appropriate in some instances, pointing to the crimes of McVeigh and Dzhokhar Tsarnaev, who was sentenced to death for his role in the Boston Marathon bombing in 2013 despite opposition from the families of some victims.
Garland “showed a lot of empathy” during his meeting with Buffalo families, Elmore said. “It appeared to us that he could feel the victims’ pain, and that it’s going to be a tough decision for him.”
The victims’ families are grieving, Elmore added, and have not thoroughly discussed the question of the death penalty. “But this is a case where this guy, Gendron, showed no remorse, and he had a long effort in planning and scoping out multiple sites,” he said. “White supremacy is a significant danger to our country. So deciding what they’re going to do will not be a quick decision.”