Two separate shootings 3,218 kilometres apart. One killed 11 at a Pittsburgh synagogue. The other killed 23 at a Walmart in El Paso, Tex. Both were motivated by racial hate. Both involved gunmen who later claimed mental illness.
But earlier this year, the Justice Department authorized the death penalty only for the case in Pittsburgh, where jurors will soon answer the weightiest of questions: Should Robert Bowers be put to death?
Mr. Bowers’s trial is in the penalty phase after his June conviction for the 2018 antisemitic attack. A federal judge last Friday gave Patrick Crusius the maximum available sentence for the 2019 Walmart attack on Hispanics: life in prison. He pleaded guilty after the department took a death sentence off the table.
Contrasting decisions in such similar cases illustrates the department’s murky, often baffling and seemingly inconsistent death penalty policies. Department decision-making and the criteria it favours are also shrouded in secrecy.
So how do those decisions get made and by whom?
Biden’s Justice Department
President Joe Biden campaigned in part on a promise to abolish the U.S. death penalty. While he has taken no steps to fulfill that, his Justice Department has made some notable changes.
In 2021, U.S. Attorney General Merrick Garland announced a moratorium on federal executions while a review of execution procedures is completed. However, it doesn’t stop prosecutors from seeking death sentences.
The department also withdrew permission for death sentences in 24 out of 29 cases authorized by prior administrations.
And the department hasn’t authorized death penalties for any of around 400 new indictments during Mr. Biden’s presidency that carried capital sentences. But it’s still mulling whether to authorize a death sentence for Payton Gendron, a white supremacist who killed 10 Black people at a Buffalo, N.Y., supermarket in 2022.
What hasn’t changed under Biden?
Critics of the department single out an enigmatic department division, the Capital Case Section. With just nine career attorneys and one administrator, it assists U.S. attorney’s offices with capital cases and plays a vital role advising department review committees, which vote on recommending death sentences, although Mr. Garland has the final say.
Though many were hired under other administrations, all current staff worked in the section under former president Donald Trump, who oversaw a historic six-month spree of 13 federal executions. Richard Burns, the team’s leader, became section chief during Mr. Trump’s term.
Critics argue that carry-over contributes to an unwelcome continuity.
The department has fought as hard under Mr. Biden as under Mr. Trump to defeat all bids by some 40 inmates on federal death row in Terre Haute, Ind., to have their death sentences tossed on racial bias and other grounds.
“I don’t think it’s a surprise that in the absence of any declared policy in the White House and having the same staff at the Capital Case Section that you do not have wholescale changes,” said Robert Dunham, a Temple Law School adjunct professor and former director of the Death Penalty Information Center.
Monica Foster, chief federal defender at the Indiana Federal Community Defenders office, argues the section has a vested interest in pushing for some capital cases to be green-lighted.
“Without death penalty cases, they have no reason for being,” said Ms. Foster, who has clashed with section attorneys in court.
The section, she said, once simply ferried documents to review committees but now assumes a more active role, conducting research and interviews to prepare for death penalty decisions.
“They can end up steering the outcome,” Ms. Foster said.
Justice Department spokesman Scottie Howell said Ms. Foster’s claim and other allegations about the section are false, adding that department staff “make all decisions based on the facts and the law and hold themselves to the highest standards.”
Mental health, other factors in department decisions
An Associated Press review of court filings and Biden-era staff guides offers clues about what influences the Justice Department’s decisions. They suggest the department is most likely to OK death sentences for racist and terrorist attacks and when victims’ families support it.
Changes to department guidance also specify mental illness can count against approving death sentences, which is a departure from Trump-era guidance. At least two inmates executed under Mr. Trump had severe mental illnesses.
The guidance was central to the Crusius decision, with department attorneys accepting he had schizoaffective disorder. They rejected claims Mr. Bowers’s psychotic episodes pointed to schizophrenia.
In April court filings explaining its Bowers decision, the department noted most victims’ families wanted Mr. Bowers to die if convicted. The department also sought its own mental evaluation of Mr. Bowers before the final decision on authorization. The defence refused, saying prosecutors wouldn’t assure them Mr. Bowers’s exam statements would not be used at trial. Government mental health experts were given access to Mr. Bowers just before trial.
Responding to criticism, the department also denied its decision was inconsistent with those concerning Mr. Crusius and others, saying Mr. Bowers’s shooting stood apart because older victims were uniquely vulnerable and the crime occurred in a house of worship. The judge in the Bowers case ultimately agreed.
What else is known about the special division?
A 2016 gender discrimination lawsuit from a former section employee against the Justice Department offered further insight into the secretive Capital Case Section. During litigation of the suit, which was later dismissed, ex-staffers accused the section of being disorganized and one accused a section attorney of withholding interview notes in Andrew Rogers’s case.
While in federal prison, Mr. Rogers killed a fellow prisoner in 2013 in a bid to get executed and avoid the drudgery of life behind bars. He told homicide investigators: “If I get the death penalty, I’ll take it with a smile.” Barack Obama’s Justice Department authorized the death penalty for him.
Ms. Foster, representing Mr. Rogers in a 2018 bid to vacate the authorization, cited the allegations made in the gender discrimination suit. She contended the withheld notes from interviews with a prison psychologist and others would have proved Mr. Rogers’s mental illness.
Just days before a 2019 hearing in Mr. Rogers’s case to examine claims of section misconduct deriving from the discrimination suit, the department rescinded the death sentence authorization.
Ms. Foster said it did so to avoid a scheduled hearing that could have proven the allegations, and that the defence was obliged to end the case by letting Mr. Rogers plead guilty and receive a life sentence.
A 2020 department filing said an Office of Professional Responsibility investigation found no wrongdoing by the section attorney in Mr. Rogers’s case. The attorney still works in the section.
The department never publicly released an OPR report on that investigation.
A Nov. 21, 2022, OPR letter to Ms. Foster obtained by the AP says the 114-page report addressed, among other things, whether department attorneys “conducted a biased investigation to unduly influence the Attorney General” to authorize the death penalty for Mr. Rogers.
The letter says the report concluded there was no “professional misconduct” on grounds the defence ultimately received helpful evidence before Mr. Rogers pleaded guilty, even if it was received late.
But the letter also says the report found a department attorney “knowingly made a false statement to defence counsel,” and one failed “to follow a supervisor’s direction to disclose attorney notes to the defence” and displayed “general inattention to the case.”
Changes can’t happen without Biden
Death penalty foes say Mr. Biden’s department should be judged by the standard Mr. Biden set himself and should oppose all executions, including Mr. Bowers’s.
But blame for failures to make good on Mr. Biden’s pledge to end the federal death penalty should be directed up the command chain, Prof. Dunham said.
“If Joe Biden doesn’t want the federal death penalty, or is stuck with one and wants to make it fairer, then he and Justice Department [political appointees] need to take steps to bring that about,” he said.