Garland's doubts about capital punishment will figure into decision on Buffalo mass shooting case

“All options are on the table,” Ross said. “We will put every tool in our toolbox to make sure justice is done.”

A decision to seek the death penalty, however, would need consent from a cadre of top Justice Department officials and a U.S. attorney general cool to capital punishment in general.

Merrick Garland said in an NPR interview last year that his views on capital punishment have changed in the 20 years since he oversaw the federal government’s case against Oklahoma City bomber Timothy McVeigh, who was executed in 2001.

Garland’s concerns focus on, among other things, capital punishment’s “arbitrariness” and its “disparate impact against people of color.” He wrote those words in July 2021 when he imposed a moratorium on federal executions.

When asked during his confirmation hearing whether he would again seek the death penalty in a case like McVeigh’s or that of Dylann Roof, who was sentenced to death in 2017 for killing nine people in a Charleston, S.C., church, Garland would not say. He predicted the Justice Department would review its policy on executions and said, “there’s no point in having a policy if you make individual discretionary decisions.”

Garland need not be bound by the opinions of the president who nominated him. But Joseph R. Biden pledged during his campaign to end the federal death penalty and to incentivize states to do the same.

Then-President Donald Trump’s Justice Department resumed the executions of federal prisoners after a 17-year hiatus by putting 13 people to death in a six-month span late in his term. Garland has since reversed decisions to seek the death penalty in 12 cases, according to the Houston Chronicle. And his almost year-old moratorium will remain until the Justice Department reviews the moves former Attorney General William Barr made to facilitate executions.

The public now knows that Payton S. Gendron, who faces state charges of murder and domestic terrorism but no federal charges yet, planned his Buffalo killing spree over several months. The log and white supremacist screed he posted online moments before the attack show he acted out of racial animus toward African Americans and outfitted his AR-15 with a high-capacity magazine so he could overwhelm an armed security guard and murder more people without reloading.

“I just want to get this over with and die,” he wrote roughly a month before the onslaught, which he livestreamed.

“If there were a case that would be death penalty eligible, in my estimation it would be this case,” said Dennis C. Vacco. He served as the U.S. attorney for Western New York from 1988 to 1993 and later was elected New York’s attorney general in a campaign season that featured the candidate atop his Republican ticket, George E. Pataki, promise to reinstate the death penalty if elected governor.

While the U.S. Attorney’s Office declined to comment for this article, Vacco theorized that Ross and her staff are making sure they have an airtight case against Gendron on any federal hate crime charge that could bring the potential for execution. He said putting Gendron to death would deter others from similar crimes.

“We need a loud and clear sign that if you cross this line, these are the consequences of crossing this line,” Vacco said, predicting that no one would fault Garland if he sought the death penalty for the slaughter in Buffalo.

In 1995, Pataki signed the death penalty law that he had sought. In 2004, New York’s highest court, the Court of Appeals, declared it unconstitutional. The harshest penalty that Gendron can receive under state law is a life sentence behind bars with no possibility of parole. Last week, District Attorney John J. Flynn revealed Gendron had been indicted on 10 counts of murder in the first- and second-degree, a count of domestic terrorism motivated by hate, and other charges.

Gendron, 18, has pleaded not guilty. A Gendron defense lawyer did not return a request for comment for this article.

Betty Jean Grant has represented East Side districts as a Buffalo school board member, Buffalo Common Council member and Erie County legislator. She ran unsuccessfully for the State Senate and for mayor, when she appealed to East Side voters by saying they lacked priority in City Hall. She has a sense of how a Justice Department decision to seek the death penalty would resonate in the community directly hit by the attack.

“If the federal government is going to aggressively and honestly pursue the death penalty, the sentiment is that that is the punishment he deserves,” Grant said of Gendron. “But if they are not going to pursue the death penalty and he serves life without parole, people say he should serve that in a state prison.” The people she has talked to see life in a state prison as tougher than in a federal prison, she said.

Despite Garland’s concerns about the death penalty, U.S. prosecutors continue to argue for executions decided before the Biden presidency. For example, prosecutors are pressing to keep death sentences in place for Dzhokhar Tsarnaev, a perpetrator of the 2013 Boston Marathon bombing that killed three and injured hundreds, and South Carolina’s Roof. Both have appealed to the U.S. Supreme Court. Similarly, the death penalty remains on the table in the federal prosecution of Robert Bowers, who is charged with killing 11 people in Pittsburgh’s Tree of Life synagogue in 2018. Bowers’ lawyers have stated he is willing to plead guilty for a sentence of life without parole, according to media reports there. 

“In my experience as a lawyer for over 35 years in Western New York, this is the worst crime I have ever seen,” said John V. Elmore, who has served as a prosecutor and an assistant attorney general and now, in private practice, represents the family of shooting victim Andre Mackniel. Elmore said his clients don’t have an opinion on whether Gendron should receive the death penalty, but he calls it a “realistic possibility” that the Justice Department will seek it and a Western New York jury would impose it.

Elmore, who in 1998 defended a man facing the death penalty in state court, said that jurors in a death-penalty case are selected after being asked if they would be willing to impose the death penalty if they reach a guilty verdict. That filters out potential jurors who oppose capital punishment on moral or religious grounds. Elmore also said no mitigating factors have yet surfaced with Gendron: At this early stage of his case, he has not accepted criminal responsibility for the crime and has publicly shown no remorse.

It takes years for death penalty cases to move through the courts.

Social activist Duncan Kirkwood attempted to sum up the Jefferson Avenue community’s wish for Gendron.

“We want to see him prosecuted to the fullest extent of the law, and we want to see enough of a punishment and penalty that it deters the other white domestic terrorists in our nation from these types of terrorist acts,” he said.

Kirkwood was reminded that the “fullest extent of the law” would mean the death penalty.

“If that’s what it is, that’s what it is,” he said.