Justice Department to seek death penalty for Buffalo mass killer

Federal prosecutors on Friday announced plans to seek the death penalty for Payton Gendron, a white man who fatally shot 10 Black people in a racist rampage at a Buffalo grocery store in May 2022.

Authorities gave notice in a court filing ahead of a status conference hearing planned in the afternoon at the Robert H. Jackson federal courthouse in Buffalo.

The decision marked the first time Attorney General Merrick Garland has authorized a new capital prosecution. It resolved a question that has lingered for more than a year over how the Biden administration would proceed, given the president’s opposition to the death penalty during his campaign.

Gendron, 20, faces federal charges on hate crimes and weapons violations for the massacre at the Tops Friendly Markets. He already is serving a sentence of life in prison without parole after pleading guilty to New York state murder charges in November 2022.

Defense attorneys have said he would plead guilty to the federal counts if prosecutors elected to forgo the death penalty.

Gendron’s attorneys said in a statement they were “deeply disappointed” in the decision, noting Gendron’s youth – 18 at the time of the attack – and the fact that he already is serving a life sentence.

“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,” the defense team said, citing easy access to firearms and hateful rhetoric on social media.

Federal prosecutors met with the victims’ families Friday morning to inform them of the decision. Some have said they support a death penalty case, while others have said they would accept a plea deal for Gendron as a way to move past the ordeal and not relive the attack during an extended trial.

The decision comes after a Justice Department case review that took nearly 20 months and included input from prosecutors, the criminal division and the civil rights division, which forwarded a recommendation to Garland.

President Biden expressed opposition to the death penalty during his campaign, echoing concerns from civil rights groups that say the punishment unfairly targets racial minorities and the poor.

But the president has not issued a policy to block prosecutors from seeking capital punishment, and he has not commuted the death penalty sentences of the 40 inmates on death row.

In 2021, Garland issued a moratorium blocking the Justice Department from carrying out any executions. That moratorium, which remains in place, does not prohibit prosecutors from seeking new death sentences.

Gendron, if sentenced to death, would spend years on federal death row pending likely appeals by his defense team.

The case will now move toward a capital trial that, once started, could take weeks. Death penalty prosecutions unfold in two parts. Jurors must first weigh a defendant’s guilt or innocence; if the person is convicted, the proceedings shift to the penalty phase, which determines the punishment.

In the filing, which was submitted in the U.S. District Court for the Western District of New York, prosecutors laid out a series of factors they said warranted this punishment.

Prosecutors said the attacker was driven by racial hatred, substantially planned his rampage and hoped to inspire others to also carry out violence.

The shooter specifically targeted the Tops grocery store “to maximize the number of Black victims,” said the filing, which was signed by Trini E. Ross, the U.S. Attorney for the Western District of New York.

In addition, the filing says, the attacker victimized people who were deemed particularly vulnerable due to their age. Out of the 10 victims who were killed, five of them were at least 65 years old; the oldest, Ruth Whitfield, was 86.

Under the federal death penalty statute, it can be an aggravating factor if a victim is viewed as particularly vulnerable due to their old age or youth.

In August, the Justice Department obtained a death sentence against Robert Bowers, 50, a White man who fatally shot 11 Jewish people at a Pittsburgh synagogue in 2018.

That case began during the Trump administration, and prosecutors elected to bring it to trial after a review when Garland took office in 2021. The outcome marked the first federal death sentence in four years.

Like Bowers, Gendron was radicalized online through white nationalist ideology, and he carried out his crimes with an AR-15 assault rifle.

Gendron posted a rambling, 180-page screed online before the attack in which he expressed racist beliefs and vowed to kill Black people. Authorities said that written on his rifle were racial slurs, the names of other mass shooters and the phrase, “Here’s your reparations!”

Gendron apologized to victims’ families at an emotional state court sentencing hearing in February, during which one man lunged at him in anger, prompting law enforcement officials to temporarily remove Gendron from the courtroom.

The Justice Department authorized 44 death penalty prosecutions during the eight years of the Obama administration and 39 during the four years of the Trump administration, federal authorities said.

“The government’s decision to pursue a death sentence will do nothing to address the racism and hatred that fueled the mass murder,” said Jamila Hodge, chief executive of Equal Justice USA, which works on criminal justice reform. “Ultimately, this pursuit will inflict more pain and renewed trauma on the victims’ families and the larger Black community.”