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The day after a gunman killed 10 blacks at a grocery store in Buffalo, Damon Hewitt’s phone rang. Attorney General Merrick Garland was on the line.
Garland contacted civil rights leaders to bolster his promise that the Justice Department would investigate hate crimes. Hewitt, president of the Civil Law Advocates Committee, is not tired: What is needed to combat domestic extremism and racist violence, he told Garland, is an approach in the style of Marshall’s plan to boost federal attention and resources .
“To what extent is the federal apparatus capable and interested in protecting blacks?” Hewitt said in an interview, recounting Sunday’s conversation. “It’s a test again.”
Investigators from the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Justice Department’s Department of Civil Rights are reviewing evidence in Buffalo and online to gather the scope and motivation for the mass shooting. Peyton Hendron, an 18-year-old white man, pleaded not guilty to state charges of first-degree murder. He is due to appear in court on Thursday morning.
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Although justice officials will co-operate and assist local authorities, federal prosecutors are also conducting a parallel investigation to determine whether to charge Hendron with a hate crime, a prospect that could add significant punishment, including the death penalty, legal experts said.
The federal investigation is expected to take weeks and may move at a more deliberate pace than the local investigation, according to former Justice Department officials. Prosecutors must prove not only that Hendron carried out the shooting, but also that he was motivated by racist hatred of blacks – an effort that will be based on hundreds of pages of racist, white reasoning that he claims he wrote and published in Internet .
Yet the Biden administration faces demands to respond quickly and vigorously at a time when US intelligence officials cite domestic extremism and white nationalism as a threat to national security. Speaking at the American Law Institute’s annual meeting in Washington on Tuesday, Garland seemed to acknowledge the urgency, stressing that his department “will tirelessly – and ruthlessly – investigate this as a hate crime and a matter of racially motivated violent extremism.”
As he often does, Garland reminded his audience that the Department of Justice was founded in 1870, during reconstruction, with the primary task of protecting black Americans from the Ku Klux Klan and other white supremacist groups. “Preventing hate crime is a moral obligation of every American if we expect to continue living in a democracy,” he said. “And that’s what we intend to do.”
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Garland announced a federal investigation within hours of the attack on Saturday at the Tops Friendly Markets store, located in a predominantly black neighborhood in Buffalo. In a statement, he called it “pointless, horrific shooting.”
Former justice officials said the department has traditionally allowed local authorities to take the lead in investigating and ultimately prosecuting such cases, serving as a bulwark for federal charges if local prosecutors fail to win a verdict.
But experts say pressure has increased in recent years – especially since the mass protests for social justice in 2020 – for the federal government to take the lead, sending a deterrent message and signaling to the country that extremism and racial hatred should not be tolerated.
In February, the Justice Department won a hate verdict against three white men who had already been sentenced to life in prison for the murder of Ahmaud Arbury, a black man in Georgia in 2020. And federal prosecutors also successfully tried three former Minneapolis officials on charges of violation of the rights of George Floyd, a black man who died in police custody in 2020.
“The Department of Justice is much more aggressive in these cases,” said Jonathan Smith, a former justice official and now executive director of the Washington Committee on Lawyers for Civil Rights and Urban Affairs. “The timing is different and they are meeting the real demands of the communities and the urgency of these hate-ridden incidents. It does not contradict the position of the entire administration that domestic terrorism is one of the greatest threats to public security. “
In New York, Gov. Katie Hochul (D) said Wednesday that “domestic terrorism is the most significant threat we face as a state” and signed an executive order to create new units for domestic terrorism for the U.S. Department of Combating Terrorism and the state police. She also called on lawmakers to pass a law to close the loopholes in the gun law.
Similarly, Garland set up a new unit in the Ministry of Justice this year, focusing solely on domestic terrorism, acknowledging that the issue is becoming more urgent.
In their telephone conversation this weekend, Hewitt said, Garland promised a response from the entire government and pointed to the White House’s publication last summer of a National Strategy for Combating Domestic Terrorism. President Biden traveled to Buffalo on Tuesday to meet with the victims’ families and call the superiority of white “poison.”
“Their response is important,” said Maya Wiley, president of the Leadership Conference on Civil and Human Rights, who spoke with several senior justice officials after the shooting. “They make it clear that they understand how significant, outrageous and devastating this crime is. I believe that this is a hate crime and it is not their job to bring charges before an investigation is carried out. But they are treating it because of what it represents and the fear and trauma it causes across the country, not just in the Buffalo community. “
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Legal experts said federal prosecutors are more likely to prosecute charges under Section 249 of Title 18 of the U.S. Penal Code, which allows federal prosecutions for crimes based on race, religion, national origin, gender, sexual orientation or disability. The maximum sentence in such cases is life imprisonment.
Benjamin Wagner, who served as U.S. Attorney for the Eastern District of California from 2009 to 2016, said the judiciary could also consider a Section 245 case that offers broad protection of civil rights in federally protected activities – including interstate trade. which prosecutors may define as shopping at a grocery store full of goods outside of New York. A sentence under this section will allow prosecutors to seek the death penalty.
Such a scenario could put Garland in a difficult position. Last year, under pressure from civil rights groups, he declared a moratorium on federal executions as the ministry reviewed changes in the Trump administration’s death penalty policy. This review continues. However, the note did not specify whether the department would seek new death sentences during that time.
The Department of Justice defended existing federal death sentences when they were challenged in court, including for an armed man who killed nine black parishioners at a church in Charleston, South Carolina, in 2015, and the survivor of the Boston Marathon bomber. In both cases, the death sentences were prosecuted during the Obama administration.
“If I had to guess, I think they would choose the death penalty,” Wagner said, citing a desire by federal authorities to be in line with previous cases.
A buffalo shooting suspect wrote about plans five months ago, according to publications
The document, which authorities said was compiled by Gendron, cites several other convicted or accused mass murderers, including Dylan Rufus, a staunch white supporter who said he carried out the attack in Charleston in hopes of inciting racial war.
“It would be difficult for the department to explain why it would want death charges against the shooter in Dylan Roeff’s synagogue and the Tree of Life and did not raise it in this case,” said Paul Butler, a law professor at Georgetown University, a former federal prosecutor. He was referring to the massacre of 11 people in 2018 at a synagogue in Pittsburgh.
“If the evidence is what has been suggested in the media, it is very likely that we will see that the department is looking for death in this case,” Butler said. “It’s almost a bigger problem for Garland if he doesn’t look for it.”
Still, Wiley of the Leadership Conference said the 230 organizations that make up her coalition remain strongly opposed to death sentences based on fears that racial minorities are disproportionately targeted.
Ed Chung, a former prosecutor in the Civil Justice Department, said section 245 had not been used frequently since the adoption of the Shepard-Bird Hate Crimes Prevention Act in 2009. Prosecutions under that provision could be difficult, he said.
“I would not think that the Ministry of Justice would add this accusation just to have in the indictment, which meets the requirements for the death penalty,” said Chung, vice president of Vera, which advocates an end to mass imprisonment.
In Buffalo, some members of the community called Gendron’s alleged actions equivalent to lynching black victims, leading to speculation that federal prosecutors may seek to prosecute him under a federal anti-lynching law passed by Congress in March. But legal experts said the law would only be applicable if Gendron conspired with at least one other person to commit the crimes. So far, no evidence has emerged to suggest this.
For Hewitt, of the Committee of Civil Law Advocates by law, the most important goal of the federal role in the Buffalo case would be to achieve “moral clarity” …
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