In a Friday afternoon announcement, the Biden Administration crossed the Rubicon when it said that it would seek the death penalty in the case of Payton Gendron. He killed 10 people in a racially motivated shooting at a Tops Supermarket in Buffalo, New York, in May 2022. Gendron, who was 19 at the time of the shooting, has already been convicted of murder and sentenced to life in prison without parole in a state criminal case.
His lawyer had told the feds that Gendron would plead guilty to the various federal charges brought by the Justice Department if the department would take the death penalty off the table. But none of that seems to have mattered to an administration that once touted its abolitionist credentials.
Horrible crimes, like Gendron’s, pose the sternest test for people opposed to the death penalty. The Biden administration just failed that test.
Recall that when Joe Biden ran for president he campaigned as a death penalty abolitionist. It was the first time any major presidential candidate had ever done so. Biden laid out a detailed plan for reform of the criminal justice system which included a promise to “work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.”
More to the point, in light of the announcement at the start of the Martin Luther King holiday weekend, in 2020 Biden had said that people convicted of even the most egregious crimes should not get death sentences, but “should instead serve life sentences without probation or parole.”
His promise and his commitment to act decisively to change this nation’s approach to crime and punishment helped solidify support for Biden among crucial consistencies, including young people and many people in the Black community.
But now, with the initiation of the administration’s first capital prosecution, that promise has been broken. Indeed, three years into his presidency the only thing consistent about the Biden administration’s handling of the death penalty has been its inconsistency.
On the anti-death penalty side, in 2021 the Justice Department under Attorney General Merrick Garland imposed a moratorium on federal executions. Moreover, Garland decided not to move forward with most of the capital prosecutions begun by the Trump Administration.
But on the other side of the ledger, the Justice Department has vigorously defended all existing federal death sentences and has done nothing about the use of solitary confinement on the federal death row. As I noted at the start of last year, “The department is defending death sentences even when there are concerning issues, like intellectual disability or severe mental illness of defendants, or racial bias and prosecutorial misconduct in those cases.”
Nothing has changed since then.
The president also has not indicated that he intends to commute the sentences of people now on the federal death row.
And the administration has made decisions in high-profile cases that have raised eyebrows among death penalty opponents. For example, it asked courts to uphold Boston Marathon bomber Dzhokhar Tsarnaev’s death sentence. It continued other death cases started under Trump in instances of mass murder and domestic terrorism. As the New York Times notes, “In the case of Sayfullo Saipov, Mr. Garland denied the defense’s request to drop the pursuit of the death penalty if the trial ended in a conviction. After the conviction of Mr. Saipov, who in 2017 drove a pickup truck down a Manhattan bicycle path, killing eight people, a jury deadlocked on the death penalty, returning a sentence of life in prison.”
The administration pursued a similar course in the case of the Tree of Life Synagogue killer, Robert Bowers, who murdered 11 worshipers in Pittsburgh 6 years ago. Garland, as the Times reported, “did not withdraw the request for the death penalty in that case.” The Bowers jury returned a death verdict.
And now the Gendron case.
That the decision to seek death in this case was not a hasty or impulsive one does not make it any more acceptable to people with sincere abolitionist convictions. It came after a Justice Department case review that, as the Washington Post notes, “took nearly 20 months and included input from prosecutors, the criminal division and the civil rights division.”
The Biden Justice Department indicted Gendron last July on 27 federal counts related to the shooting at the supermarket, a shooting that Gendron had grotesquely live-streamed online. He targeted the area because of its Black population and was motivated by white supremacist hate and extremism.
In New York Gendron was, as NPR reported “charged… with one count of domestic terrorism in the first degree, 10 counts of first-degree murder, 10 counts of second-degree murder as a hate crime, three counts of attempted second-degree murder as a hate crime and one count of second-degree criminal possession of a weapon.”He eventually pled guilty in a state court to 15 charges, including murder and attempted murder. According to ABCNews, he was “the first person in state history to be charged with domestic terrorism motivated by hate.”
Before his sentence was imposed, Gendron apologized, saying he was "very sorry for all the pain" he caused and "for stealing the lives of your loved ones."
"I did a terrible thing that day,” he acknowledged, “I shot people because they were Black."
After that apology, Susan Egan, the judge in the New York case, told Gendron, "There is no place for you or your ignorant, hateful and evil ideologies in a civilized society. There can be no mercy for you, no understanding, no second chances. The damage you have caused is too great and the people you have hurt are too valuable to this community. You will never see the light of day as a free man ever again."
A lifetime of punishment was apparently not enough for the Biden Justice Department. At the time of Gendron’s federal indictment, Attorney General Garland may have tipped his hand about Friday’s death penalty decision. “The Justice Department,” he said “fully recognizes the threat that white supremacist violence poses to the safety of the American people and American democracy. We will continue to be relentless in our efforts to combat hate crimes, to support the communities terrorized by them, and to hold accountable those who perpetrate them.”
Now we know what accountability means to the Attorney General and perhaps to the president under whom he serves. Just as hard cases are said to make bad law, the most serious crimes can bring out the worst in some otherwise thoroughly decent people.
Like Garland, I have no sympathy for Gendron, and I condemn the racism that motivated his awful crime. But, in the end, I am convinced the Biden Administration and its Justice Department made the wrong call.
Just like you can’t be half pregnant, a commitment to ending the death penalty means ending it for everyone, including people who commit the worst crimes — like Payton Gendron. His lawyers got it right when they responded to the administration’s decision to seek the death penalty by saying “Rather than a prolonged and traumatic capital prosecution, the efforts of the federal government would be better spent on combating the forces that facilitated this terrible crime.”
