Tops mass murderer is not too young for death penalty

Prosecutors on Friday rejected the notion that a federal judge could exempt May 14 killer Payton Gendron from the death penalty because he was 18 when he shot and killed 10 people at a Tops grocery store in 2022.

In 2005, the Supreme Court ruled that the death penalty was unconstitutional for people who were younger than 18 at the time the crime was committed. At the same time, it drew a “clear line” that no longer provided any corresponding protection for people aged 18 and over.

“This court has no role in expanding that limit,” federal prosecutors said in their complaint. “Only the Supreme Court or Congress can change that now.”

At the time of the racist mass murder in Buffalo, Gendron was 18 years, 10 months and 28 days old – 328 days over the age limit set by the Supreme Court ruling.

“Simply put, the defendant is asking this court to do something it simply cannot do,” said prosecutors at the U.S. Attorney’s Office in Buffalo and trial lawyers at the U.S. Department of Justice in Washington.

Last month, public defenders representing Gendron in court asked U.S. District Judge Lawrence Vilardo to free him from the death penalty, arguing that there had been significant advances in the science of late-adolescent brain development since the Supreme Court’s ruling.

Recent research has shown that people in their late teens and early twenties “bear a strong resemblance to adolescents under 18 in terms of their decision-making and behavioral skills,” the defense’s complaint states.

This argument could not overturn the death sentence against Dylann Roof, who in 2015, at the age of 21, killed nine members of a black congregation at the Mother Emanuel AME Church in Charleston, South Carolina.

A federal appeals court also rejected the age limit argument for Boston Marathon bomber Dzhokhar Tsarnaev, who was 19 when the 2013 bombing near the marathon finish line killed three people and injured hundreds.

In the Roof and Tsarnaev cases, the lawyers presented the same or similar studies as those cited by Gendron’s lawyers, prosecutors said here.

Arguments about Gendron’s age and brain development should be presented to the jury as mitigating circumstances at a death penalty hearing, according to a motion filed by Assistant U.S. Attorneys Joseph Tripi and Brett A. Harvey and U.S. Department of Justice trial attorneys Laura B. Gilson and Michael S. Warbel.

On May 14, 2022, Gendron attacked black people at the Tops supermarket on Jefferson Avenue in a racist attack that he broadcast live on the internet. He shot and killed ten black people and injured one black man and two white people.

A federal grand jury indicted Gendron on 27 counts, including 10 counts of hate crimes resulting in death. The U.S. Department of Justice announced in January that it would seek the death penalty. An Erie County judge had already sentenced Gendron to life in prison without the possibility of parole. He had pleaded guilty to 10 counts of premeditated murder and three counts of attempted second-degree murder.

His lawyers also asked Vilardo last month to issue an order stating that the federal death penalty constitutes cruel and unusual punishment and that the death penalty should be repealed.

In their response Friday, prosecutors said the defense’s claim was not new.

“The courts have routinely rejected such arguments in nearly every capital crime tried in federal court over the past 20 years,” the indictment states.

Gendron’s lawyers described it as arbitrary that the federal government spared some defendants but singled out Gendron in particular.

The government declined to seek the death penalty for Patrick Crusius, the Walmart shooter in El Paso, Texas, who killed 23 people; Anthony Jordan, a St. Louis-area drug dealer responsible for at least 12 drug-related murders; and Jairo and Alexi Saenz, the leaders of a Long Island MS-13 gang responsible for eight murders, according to Gendron’s lawyers.

In their document filed Friday, prosecutors said whether or not murder defendants faced the death penalty in other cases was not evidence of a constitutional violation.

The Gendron legal team’s “call for uniformity of results is a plea for false uniformity that would deprive decision-makers of the ability to exercise precisely the discretion that benefits individual defendants,” prosecutors said.

Gendron’s lawyers – Assistant Federal Public Defender Sonya A. Zoghlin, Senior Assistant Federal Public Defender Anne M. Burger, Senior Trial Attorney MaryBeth Covert and Attorney Julie Brain – also moved to dismiss the charges against Gendron on the grounds that the federal Hate Crimes Prevention Act is unconstitutional.

The law criminalizes the intentional bodily harm of a person based on his or her actual or perceived race, color, religion or nationality.

Defense attorneys doubted that federal prosecutors would have an interest in re-indicting Gendron since he had already been found guilty in a state trial and sentenced to life without parole plus 90 years.

“The State of New York has guaranteed that he will spend the rest of his life incarcerated in one of its prisons and that he will die there,” Gendron’s lawyers said. “Not only has the State been found to be willing and able to prosecute Payton Gendron to the fullest extent of the law, to condemn acts of racist violence in the strongest possible terms, and to ensure that justice is done – it has done so.”

In their response Friday, prosecutors said the defense’s arguments boil down to this: “He asks this court to hold that the authority to prosecute violent, racially motivated crimes – including a mass shooting against black people – rests exclusively with the states. Yet neither the Constitution nor case law supports such a claim.”

Vilardo has set September 8, 2025 as the date for the trial in court.