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Death Penalty Sought for Buffalo Mass Shooter

By T. Evan Eosten Fisher, Esq. | Last updated on

In 2022, Payton S. Gendron entered a Buffalo supermarket armed with an AR-15 semi-automatic rifle and opened fire, gunning down thirteen Black victims and killing ten of them. Although he attempted to broadcast a live stream of the killings on Twitch, the streaming service shut down his stream within minutes. The racially-motivated massacre shocked the nation and devastated the community.

Gendron was taken into custody alive, and he was charged with numerous state and federal crimes. In state court, he pleaded guilty to all state charges and was sentenced to eleven consecutive life sentences.

On the other hand, federal prosecutors are now requesting a sentence of execution, marking the first time the death penalty has been sought by the Department of Justice in a prosecution commenced under the Biden administration. Their filing referenced Gendron’s stated motivation for the killings, an “animus toward Black persons.”

Departure from Biden’s Stated Policy on Death Penalty

The decision to seek capital punishment in Gendron’s case marks either a change in philosophy or a rare exception to the policies of President Biden and Attorney General Merrick Garland. Biden spoke out against the death penalty on the campaign trail in 2020, and he pledged to support legislation to end capital punishment. Garland initiated a moratorium on all federal executions in 2021, citing concerns about racial disparities and calling for a review of DOJ regulations and procedures.

Critics have argued that the Biden administration has been slow to take any action to eliminate the federal death penalty and have criticized this most recent decision as a betrayal of his supporters. The White House deferred to the DOJ, noting that it had independent authority over prosecutorial decisions. In contrast, the previous administration had executed more federal prisoners than any other since the 18th century.

Growing Opposition to the Death Penalty

The decision to request the death penalty in the case of Gendron comes at a time when recent polling indicates that public support for the death penalty has reached a fifty-year low. A recent Gallup poll showed that only 47 percent of Americans believe that capital punishment is applied fairly. Twenty-three states have abolished the death penalty at the state level, and only five states actually executed any convicts in 2023.

Worldwide, executions are also on the decline. The EU has discontinued the practice entirely, and countries like Russia and Israel have not used the death penalty in decades. Famously, Israel has only performed one judicial execution, that of Nazi war criminal Adolf Eichmann, in 1962.

Without a clarifying statement from Garland, it is unclear whether the DOJ is moving toward a sort of Eichmann standard, where prosecutors will seek the death penalty only in the most notorious and egregious of cases, or whether the agency is just generally lifting the moratorium and loosening its standards for capital cases.

If the standard is changing, a spike in capital cases is unlikely, as cases like Gendron's are not that common. Although the United States is home to more mass shooting events each year than any other nation, suspects are rarely captured alive, especially in shootings that are racially motivated.

Next Steps for the Prosecution?

Gendron’s court-appointed attorneys spoke out against the prosecution’s decision to seek a death sentence against their client, and they deflected responsibility for the massacre to blame social media and easy access to firearms. Gendron is charged with violating federal firearms laws and was active on social media, where he espoused white supremacist philosophy.

The DOJ's guidance forbids the use of capital punishment as a bargaining chip to pressure a plea bargain negotiation, so Gendron will likely face trial for his crimes in federal court after he avoided trial in state court with his guilty plea. Ultimately, any decision to withdraw the notice to seek capital punishment would have to come with the approval and backing of the Attorney General.

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