President Joseph Biden's stated opposition to the death penalty is running counter to his administration's decision on the fate of the racist who murdered 10 Black people in a Buffalo supermarket in 2022.
"It's really out of synch with what Biden said during his campaign," said Karen Pita Loor, a clinical law professor at Boston University who has written of the Department of Justice's decision to seek the death penalty in another case.
Last month the Justice Department announced it would seek the death penalty for Payton Gendron, who fatally shot 10 people with a semiautomatic rifle at the Buffalo Tops Friendly Market in May 2022. Two others were wounded in the attack.
During his successful 2020 bid for the presidency, Biden said he wanted to abolish the federal death penalty.
His campaign website then said: "Because we cannot ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the death penalty at the federal level and incentivize states to follow the federal government’s example. These individuals should instead serve life sentences without probation or parole."
Among the families of the 10 people murdered in May 2022 at the Tops market in Buffalo, there has been a split: Some support Gendron's execution, some don't.
Federal authorities "decided to pursue the death penalty and as a matter of record we all had to submit our wishes to the prosecutors in terms of what we wanted to see happen," said Garnell Whitfield Jr., a Buffalo resident whose mother, Ruth Whitfield, was one of those fatally shot at the Tops.
The trial is now expected for late 2025, and the jury would decide after a guilty verdict whether Gendron should be executed. But the days, weeks and months before will continue to bring heartache for those who lost loved ones.
Garnell Whitfield's sister is traveling from Ohio to Buffalo soon with a sad chore ahead of her.
"Two years removed and we're starting to go through my mother's things," Whitfield said. "It's going to be difficult."
Attorney General Garland's Buffalo shooter decision
Gendron, now 20, has agreed to a life without parole sentence with a guilty plea to the murders in state court. His attorneys have said he would do the same with federal charges.
"As the defense has made clear, without the prospect of the death penalty, Payton Gendron will plead guilty to the Indictment and no trial will be necessary," his federal attorneys wrote in recent court papers.
The Department of Justice and Attorney General Merrick Garland are the decision-makers with death penalty decisions.
The Biden administration and the Justice Department decided against the death penalty in more than 30 cases in which capital punishment was sought by previous administrations, according to the Death Penalty Information Center, which produces research on the death penalty.
And there have been cases in which the administration and the Justice Department allowed cases to continue with a possibility of the death penalty as punishment.
Gendron's crimes, however, occurred in the second year of the Biden administration.
"This is the first case that has been approved for the death penalty by Merrick Garland," said Robin Maher, DPIC's executive director.
Austin Sarat, a political scientist professor at Amherst College who has written extensively of the death penalty, said, "Joe Biden has promised more than he's produced with respect to the America death penalty.
"Biden is the first (death penalty) abolitionist American president to be elected," said Sarat, a death penalty opponent.
Will Buffalo mass killer Payton Gendron face execution?
Even those questioning the decision to seek death for Gendron say they see possible rationales for what could appear to be an about-face by the Biden administration.
Specifically, they say, the reasons could be:
- A willingness by the president to defer to the Justice Department for the decision. "Garland's own record has been consistently inconsistent," Sarat said. "He has declined to go forward with some cases that were left over from the Trump administration and he has gone forward with others." For instance, Garland decided against seeking the death penalty for Patrick Crusius, who committed the racially motivated Walmart attack in El Paso, Texas, that killed 23 people, and Anderson Aldrich, who killed five in an LGBT hate-motivated attack in the Club Q shooting in Colorado Springs, Colorado.
- A belief that terrorism or hate crimes should be treated differently. The Justice Department has agreed to the death penalty for the Boston Marathon bombing killer and for the man who murdered 11 Jewish people at a Pittsburgh synagogue. "This was a mass shooting with multiple victims, an act of domestic terrorism," Maher said of Gendron's murders. In its papers, federal prosecutors highlighted the racism foundation of Gendron's crimes. However, observers say, this is counter to the decisions in the Crusius and Aldrich cases.
- A desire to abide by the wishes of the victims in the mass killing. This, however, is not so clear-cut because of the division within that group, a number who think Gendron would suffer more by spending his remaining days in prison.
Terrence Connors, a Buffalo lawyer representing the families of survivors in a civil suit, said there are some supportive and some opposed to the death penalty. A third group, Connors said, is "dismissing (Gendron) as irrelevant."
They have turned their attention to community work and advocacy to try to strengthen their neighborhoods and the surrounding area, Connors said.
Whitfield has opposed the death penalty for Gendron. His bigger focus, Whitfield said, is on the civil suits against online companies that allowed the racist portals where Gendron and others communicated, as well as those responsible for the sale of the firearm and body armor.
"Just by fighting the fight, bringing this suit, it allows the next person to bring another suit and that’s how change happens incrementally over time," Whitfield said.
Why is there a federal execution moratorium?
Whatever the Justice Department decides with criminal cases, there is currently a federal moratorium on executions. Garland initiated the moratorium to study the fairness of federal death penalty cases and the method by which the condemned are to be killed.
"It seems to me not just inconsistent but an academic sort of move to say we're having a moratorium" while seeking the death penalty with some cases, Professor Loor said.
The Justice Department has used the moratorium to review and adjust its internal policies with death penalty decisions, said Maher of the DPIC. What's left to be decided is the methodology for executions, she said.
Numerous studies have shown the death penalty's use across the country to be racially skewed, with Black people more likely to be sentenced to death than white people for similar crimes. There also have been individuals sentenced to death who turned out to be innocent.
Lawyers in the Gendron case predict that jury selection could take several months, followed by more months of trial and then a decision by the jury of whether Gendron should be killed.
In this case, there is no question of Gendron's guilt with the murders, so the trial will largely be a precursor to the jury's deliberations over the death penalty.
Jury selection for the trial is expected to last months, as is the trial itself. Gendron's lawyers also could seek a change of venue, moving the trial away from Buffalo.
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