On the Buffalo Massacre: Quit Talking and Act

A little more than a week ago, a white supremacist named Payton Gendron shot and killed ten of his fellow creatures who had done him no harm, and whose only sin was being black. To say that he did this with malice aforethought hardly captures it. The evidence shows that he plotted his attack for weeks if not months; came armed to the teeth with automatic weapons; and did us all the favor of live streaming it while he was going about his business. CNN, seemingly trustworthy for once, has the details here.

President Biden travelled to Buffalo to give us his thoughts. But a speech is hardly enough, not for the man who took an oath to “take Care that the Laws be faithfully executed.” We don’t have any laws that will resurrect the dead, but we do have a law that will bring the only justice that fits this atrocity — the death penalty.

To my knowledge, Biden has said plenty about other, less politically awkward subjects, but nothing about capital punishment for this case. Others have, however, including some interviewed by the Washington Post:

Legal experts said federal prosecutors are most likely to pursue charges under Section 249 of Title 18, the U.S. criminal code, which allows for the federal prosecution of crimes motivated by race, religion, national origin, gender, sexual orientation or disabilities. The maximum sentence in such cases is life in prison.

Benjamin Wagner, who served as U.S. attorney for the Eastern District of California from 2009 to 2016, said Justice also could consider a case under Section 245, which offers broad civil rights protections in federally protected activities — including interstate commerce, which prosecutors could define as shopping at a grocery store filled with goods from outside New York. A conviction under that section would allow prosecutors to seek the death penalty.

Such a scenario could present [Attorney General Merrick] Garland with a complicated decision. Last year, under pressure from civil rights groups, he announced a moratorium on federal executions while the department undertakes a review of death-penalty policy changes made by the Trump administration. That review is ongoing. The memo does not, however, specify whether the department would seek new death sentences during that time.

The Justice Department has defended existing federal death sentences when they have been challenged in court, including for a gunman who killed nine Black parishioners at a Charleston, S.C., church in 2015 and the surviving Boston Marathon bomber. In both cases, the death sentences were pursued during the Obama administration.

“If I had to guess, I think they would go for the death penalty,” Wagner said, citing the desire by federal authorities to be consistent with prior cases.

“It would be hard for the department to explain why it would want death charges against Dylann Roof and the Tree of Life synagogue shooter and didn’t bring it in this case,” said Georgetown University law professor Paul Butler, a former federal prosecutor. He was referring to the 2018 shooting massacre of 11 people at a synagogue in Pittsburgh.

“If the evidence is what’s been suggested in the media, we’re very likely to see the department seek death in this case,” Butler said. “It’s almost more of a problem for Garland if he doesn’t seek it.”

So what’s the holdup?

Yet Wiley, of the Leadership Conference, said the 230 organizations that make up her coalition remain staunchly opposed to death penalty cases based on concerns that racial minorities are disproportionally targeted.

Did I read that right? We should not use the death penalty in a case as racially grotesque, or more grotesque, than any lynching in generations, because “racial minorities are disproportionally targeted”?

I would say this leaves me speechless, but, being a lawyer and law professor, I’m never speechless. So: First, as the Post notes, Biden’s former boss, the much shrewder Barack Obama, sought the death penalty and got it in closely analogous circumstances, the Charleston church massacre. Second, it’s impossible to imagine a stronger case for capital punishment. There is no sane doubt that we have the right guy (in other words, zero prospect of executing someone who’s factually innocent); the killer carefully planned his attack and essentially videotaped himself doing it; it’s one of the bloodiest mass shootings in American history; it was done for no reason other than hate; and the killer is not insane in any sense the law recognizes or should recognize (racism is poison but it’s not legal insanity).

The objection that racial minorities are “disproportionately targeted” for capital punishment is flat-out false: They would be “disproportionately targeted” only if they were capitally prosecuted in numbers greater than the numbers in which they commit capital murder (and not, as is often absurdly suggested, greater than their numbers in the general population). But black persons are not so targeted. Even though, by a considerable margin, the majority of killers are black, there are more white inmates on death row than black ones.

And there is an even more telling answer to the complaint that, as a general matter, blacks are targeted for the death penalty disproportionately more often than whites: The decision whether to seek the death penalty ought not to be made, and is not made, based on what is “generally” true. It ought to be made based on the specific facts of the individual case. Indeed, if justice means anything, it means that.

The gruesome facts of this case simply leave no doubt that, if we are to have a death penalty at all — which we do in federal law, and which the Administration has introduced no legislation to repeal — it should be sought here. The President took an oath, and regardless of what his policy preferences may be, that oath comes first.

Barack Obama remembered this, and, to the extent Joe Biden’s memory still operates, he should too.