The Biden Justice Department won't say whether it will seek the death penalty for Payton Gendron, the gunman who perpetrated a racist massacre at a grocery store in Buffalo, N.Y.
The department is investigating Gendron for hate crimes, which are punishable by death. But it refused to divulge its plans to the Washington Free Beacon, or even confirm that a capital case is under consideration. Attorney General Merrick Garland imposed a moratorium on federal executions in September, but his department is nonetheless taking steps to ensure notorious criminals like Boston Marathon bomber Dzhokar Tsarnaev and Charleston gunman Dylann Roof stay on death row.
Though President Joe Biden claims to oppose capital punishment, his administration has been equivocal and highly political where executions are concerned. The Justice Department convinced the Supreme Court to reinstate Tsarnaev's death sentence earlier this year, clearing the way for a future administration to put him to death. And the department is quietly fighting Roof's bid to overturn his death sentence.
Executions aren't likely to resume while Biden is president, but protecting the Tsarnaev and Roof death sentences—and obtaining one for Gendron—ensures a future administration can put them to death.
The Justice Department has confirmed that it's conducting a hate crimes probe of the Buffalo massacre. A federal hate crimes provision, 18 USC 245, allows prosecutors to seek the death penalty for racist violence that interferes with federally protected activities.
If the Justice Department ultimately refuses to seek the death penalty, it will have to explain why it's treating Gendron's case differently from other capital hate crimes cases it has brought in recent years. In addition to the Charleston shooting, federal prosecutors are seeking the death penalty for Robert Bowers, who allegedly murdered 11 people at the Tree of Life synagogue in Pittsburgh in 2018.
One possible distinction is that Roof and Bowers are charged with hate crimes in houses of worship that disrupted religious activities. There is a separate hate crimes provision for such crimes that does not apply to the Gendron case.
A federal death penalty prosecution is the only way Gendron could be put to death. Local authorities have the lead on the case, and New York State has functionally abolished the death penalty. The last execution to take place in New York was in 1963. Some of the country's most famous predators, like the Son of Sam killer David Berkowitz, are biding their time in New York prisons.
In recent high profile hate crimes cases, the Justice Department has followed a "one-two punch" approach. It takes a back seat to local authorities in the early stages and supports their efforts to prosecute the defendant in state courts. Federal prosecutors follow with hate crimes charges once the state-level case has run its course.
Garland's moratorium seems to apply only to the act of execution itself. It doesn't clearly bar the department from seeking new death sentences or defending old ones, as the department's own actions have shown.
The Supreme Court reinstated a death sentence for Dzhokar Tsarnaev, the Boston Marathon bomber, at the Justice Department's request in March. A Boston jury sentenced Tsarnaev to death for murdering three people and maiming dozens of others, but the First U.S. Circuit Court of Appeals vacated the death sentence for technical reasons.
Justice Amy Coney Barrett pressed an administration lawyer about the department's "end game" during oral arguments in Tsarnaev's case last year. Department lawyer Eric Feigin said the jury made the right call.
"The administration continues to believe the jury imposed a sound verdict and that the court of appeals was wrong to upset that verdict," he told the justices.
Roof has similarly filed a challenge to his death sentence in the Supreme Court. His petition includes a broader attack on the death penalty, arguing the federal government has no authority to prosecute defendants like him in the first place. And it asks what courts should do when a defendant and his lawyers disagree over whether to present evidence of mental illness in a sentencing hearing as part of an effort to avoid the death penalty.
The Biden administration has yet to file a response, which is due in July. But it has given no indication that it will back Roof's request, and it defended Roof's capital conviction in the lower courts.
Gendron has been indicted by a grand jury in western New York and remains in custody awaiting further proceedings.