Second Circuit Reinstates Death Penalty Charges in Buffalo Supermarket Federal Murder Trial
Reason · RC · trust 41/100
From today's decision in U.S. v. Gendron , by Judge Richard Sullivan, joined by Judges Joseph Bianco and Alison Nathan:
Payton Gendron killed ten Black people in Buffalo, New York in an effort to spread racial hatred and incite violence. A grand jury subsequently indicted him on twenty-seven counts of (i) committing hate crimes resulting in death or involving an attempt to kill, in violation of 18 U.S.C. § 249(a)(1)(B); (ii) discharging a firearm to commit murder, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(iii), and 924(j)(1); and (iii) using and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 924(c)(1)(A)(iii).
The government sought the death penalty on the "discharging a firearm to commit murder" charges, filing a notice of intent that listed various statutory aggravating factors justifying such a punishment. That notice also included, as relevant here, three non-statutory aggravating factors: (i) the effect of Gendron's crimes on the surviving victims; (ii) Gendron's racist motive for the shooting; and (iii) Gendron's hope of provoking further violence.
The district court struck all three of these factors. It concluded first that the government could not point to the surviving victims' injuries because only the shootings resulting in death constituted capital crimes. It then found that 18 U.S.C. § 3593(f), which bars juries from "consider[ing] the race" of capital defendants or their alleged victims, prohibited the government from arguing Gendron's racist motive as an aggravating factor. Finally, it held that the First Amendment protected Gendron's statements about his goal of inciting further violence and that the incitement aggravator unconstitutionally punished Gendron's speech.
[B.] The District Court Erred in Striking the Surviving-Victims Factor.
[T]he FDPA [Federal Death Penalty Act] allows juries deciding whether to impose a death sentence to weigh any relevant aggravating factor of which the government has provided notice. And an aggravator is "surely relevant" if it helps the jury "consider all of the circumstances of the crime in deciding whether to impose the death penalty" and "direct[s] the jury to the individual circumstances of the case." ... "Traditionally, sentencing judges have considered a wide variety of factors ... in determining what sentence to impose on a convicted defendant." ...
The surviving-victims factor is clearly relevant. By alleging that Gendron "caused serious physical and emotional injury, and severe psychological impact to individuals who survived" the attack, the factor "direct[s] the jury" to an important "individual circumstance[ ]" of Gendron's conduct: Gendron went on a mass shooting spree, killing some victims and maiming others. Indeed, death-penalty cases often involve such acts of widespread violence, and the fact that this conduct injures large numbers of survivors may often be one of the most important "circumstances of the crime."
Gendron resists this logic by arguing that section 3593(a)(2) implicitly restricts the use of potential aggravating factors related to a crime's impact on victims. That section explains that the government "may include factors concerning the effect of the offense on the victim and the victim's family." ... But even if the term "victim" describes only deceased victims, Gendron's argument overlooks the rest of the statutory text and our own precedents. Section 3593(a)(2)'s plain text does not limit the use of aggravating factors; on the contrary, it simply lists factors that the notice "may include." ...
[C.] The District Court Erred in Striking the Attempted-Incitement Factor.
As discussed above, the FDPA generally authorizes the government to present any relevant non-statutory aggravating factor. And "[t]he defendant's motive for committing the offense is" obviously "relevant" to determining his level of culpability.... "Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished." ...
The attempted-incitement factor here highlights a particularly heinous motive. It explains that Gendron, "in preparation for and in committing the acts of violence charged in this case, attempted to incite violent action by others." That aim—to inspire copycat killers to gun down crowds of people—made Gendron's behavior even more culpable, and the government may permissibly point to that goal as a reason to impose a death sentence. Furthermore, the fact that the government plans to rely on Gendron's constitutionally protected manifesto and journal to prove that motive makes no difference, because "it is beyond cavil that '[t]he First Amendment ... does not prohibit the evidentiary use of speech to ... prove motive or intent.'"
Gendron resists this chain of logic by arguing that the government is seeking to punish him for his speech, not his motive. Gendron insists that his "words [are not] being proffered to prove another valid aggravator—they [are] the aggravator." ... But the government is not seeking to punish Gendron because he expressed odious views. Rather, the aggravating factor here explicitly focuses on Gendron's motive in committing the crime; the factor seeks to punish Gendron more severely because he "attempted to incite violence" in " preparation for and in committing the acts of violence charged in this case ."
In other words, the government is seeking the death penalty not because Gendron said terrible things or is an avowed white supremacist, but because he murdered people allegedly so as to inspire other shootings. If Gendron had committed wire fraud, the government could not seek a stiffer penalty simply because he separately happened to be a racist whose writings displayed an unrelated "abstract belief[ ]" in the need for violence. But Gendron is alleged to have carried out a mass…
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