2 massacres, 2 different decisions: How does the DOJ decide who should face death?

Jul 13, 2023, 10:40 PM

FILE - Attorney General Merrick Garland speaks during a meeting with all of the U.S. Attorneys to d...

FILE - Attorney General Merrick Garland speaks during a meeting with all of the U.S. Attorneys to discuss violent crime reduction strategies at the Department of Justice in Washington, Wednesday, June 14, 2023. Contrasting decisions on whether gunmen should face a federal death sentence in massecres with so much in common illustrate the Justice Department’s murky, often baffling death penalty policies. (AP Photo/Jose Luis Magana, File)

(AP Photo/Jose Luis Magana, File)

CHICAGO (AP) — Two separate shootings 2,000 miles (3,218 kilometers) apart. One killed 11 at a Pittsburgh synagogue. The other killed 23 at a Walmart in El Paso, Texas. 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?

Bowers’ trial is in the penalty phase after his 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 favors are also shrouded in secrecy.

So how do those decisions get made and by whom?


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, 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 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, New York, supermarket in 2022.


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 Attorney General Merrick Garland has the final say.

Though many were hired under other administrations, all current staff worked in the section under President Donald Trump, who oversaw a historic six-month spree of 13 federal executions. Richard Burns, the team’s leader, became section chief during Trump’s term.

Critics argue that carryover contributes to an unwelcome continuity.

The department has fought as hard under Biden as under Trump to defeat all bids by some 40 inmates on federal death row in Terre Haute, Indiana, 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 greenlighted.

“Without death penalty cases, they have no reason for being,” said 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,” Foster said.

Justice Department spokesman Scottie Howell said 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.”


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 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 Trump had severe mental illnesses.

The guidance was central to the Crusius decision, with department attorneys accepting he had schizoaffective disorder. They rejected claims Bowers’ psychotic episodes pointed to schizophrenia.

In April court filings explaining its Bowers decision, the department noted most victims’ families wanted Bowers to die if convicted. The department also sought its own mental evaluation of Bowers before the final decision on authorization. The defense refused, saying prosecutors wouldn’t assure them Bowers’ exam statements would not be used at trial. Government mental health experts were given access to Bowers just before trial.

Responding to criticism, the department also denied its decision was inconsistent with those concerning Crusius and others, saying Bowers’ 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.


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’ case.

While in federal prison, 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.” Obama’s Justice Department authorized the death penalty for him.

Foster, representing 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 Rogers’ mental illness.

Just days before a 2019 hearing in Rogers’ case to examine claims of section misconduct deriving from the discrimination suit, the department rescinded the death sentence authorization.

Foster said it did so to avoid a scheduled hearing that could have proven the allegations, and that the defense was obliged to end the case by letting 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 Rogers’ 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 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 Rogers.

The letter says the report concluded there was no “professional misconduct” on grounds the defense ultimately received helpful evidence before 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 defense counsel,” and one failed “to follow a supervisor’s direction to disclose attorney notes to the defense” and displayed “general inattention to the case.”


Death penalty foes say Biden’s department should be judged by the standard Biden set himself and should oppose all executions, including Bowers’.

But blame for failures to make good on Biden’s pledge to end the federal death penalty should be directed up the command chain, 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.

___ Follow Michael Tarm on Twitter at https://twitter.com/mtarm

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2 massacres, 2 different decisions: How does the DOJ decide who should face death?