« California working to clear condemned inmates from death row | Main | En banc Eleventh Circuit limits reach of career offenders under USSG based on plain text of guideline for drug offenses »

January 18, 2023

The look of a federal capital moratorium(?): prosecutors not seeking death penalty for El Paso Walmart shooter

As detailed in this Wall Street Journal piece, the "Justice Department won’t seek the death penalty for the man accused of killing 23 people in 2019 at a Walmart in El Paso, Texas, federal prosecutors said in a Tuesday court filing."  Here is more:

Patrick Crusius faces 90 federal charges for his alleged role in one of the deadliest mass shootings in U.S. history.  Of those charges, 45 have been deemed hate crimes, or crimes motivated by racial, religious, national-origin, sexual, gender or disability bias. Mr. Crusius, 21 years old at the time, is accused of traveling to the Texas border city to target Latinos in the attack. Nearly two dozen people were injured in the shooting.

Jury selection is expected to begin in his federal case in January 2024.  Mr. Crusius, now 24, was also indicted on state charges of capital murder and could face the death penalty if convicted. The state case would proceed after the federal case is done....

Months after taking office in 2021, Attorney General Merrick Garland ordered a nationwide halt to federal executions while he reviewed policies and protocols put in place by the Trump administration that led to the highest rate of federal executions in more than a century.  President Biden has said he would work to end federal executions.

The Justice Department last year chose to continue the pursuit of the death penalty against an alleged terrorist charged with killing eight people in New York City in 2017.  The Trump administration initially sought the death penalty against Sayfullo Saipov, who prosecutors said was inspired by Islamic State to carry out the Manhattan attack. Mr. Saipov’s attorneys asked Mr. Garland to withdraw the death penalty from the case but were turned down.

Justin Underwood, an attorney representing the family of Walmart shooting victim Alexander Hoffman, said they were disappointed by the Justice Department’s decision. “They’re disappointed the U.S. government won’t seek the death penalty on a mass murderer who drove 10 hours to seek out and kill Hispanic and Mexican people,” Mr. Underwood said. “If this guy doesn’t qualify for the death penalty, why on earth do we even have a federal death penalty statute?”

Mr. Underwood questioned why the federal government continued to pursue the death penalty in Mr. Saipov’s case in New York, but not in the Walmart shooting.  Mr. Hoffman’s widow and his two sons are now looking to the state’s case for justice, Mr. Underwood said.  “This might not be the Christian thing for me to say, but some people need to be killed and he certainly qualifies,” Mr. Underwood said. “I just put my faith in the state of Texas to seek justice in this case.”

Intriguingly, this Reuters article about this prosecutorial charging decision makes mention of a fact not noted by the WSJ that might be part of the story: "When he was taken into police custody minutes after the shooting, Crusius was in a psychotic state and treated with anti-psychotic medication, according to mental health professionals employed by the jail, a court filing said."  Mental health issues might well have influenced federal prosecutors here; Crusius's defense attorneys hoped it would accourding to this 2020 AP piece:

Lawyers for a man charged with shooting scores of people in a racist attack at a Texas Walmart say their client has diagnosed mental disabilities that should be a “red flag” for federal prosecutors considering whether to seek the death penalty.

Patrick Crusius “has been diagnosed with severe, lifelong neurological and mental disabilities” and was treated with antipsychotic medication following his arrest moments after the massacre in El Paso, his attorneys wrote in a court filing.

January 18, 2023 at 02:20 PM | Permalink


This cries out for capital punishment.

Posted by: federalist | Jan 18, 2023 2:38:31 PM

May God be praised for federalism -- the practice that makes it possible for states to pursue their own law when the feds go on vacation.

Posted by: Bill Otis | Jan 18, 2023 3:15:24 PM

The flawed 'logic' employed by the 'Death Penalty Advocate Mob'is that execution (OR the mere threat thereof) will deter/prevent future mass shootings spurred on in great part by the propoganda of far right racist and homophobic provocateurs (Trump, Fox News, Bannon, Jones, Carlson, Hannity, Schlapp, Freedom Caucus, many in the GOP, etc.). On this, we can certainly agree, no?

Seems that the threat of capital punishment did not deter the El Paso shooter, nor the one in Buffalo, or Pittsburgh, Highland Park, Orlando, Colorado Springs, Charlottesville, and so many other locales.

All of these incidents took place post-Timothy McVeigh's execution. So obviously this logic has worked and worked well..right?

Seems to me that logic and common sense has gone on vacation, not the federal government.

Posted by: SG | Jan 18, 2023 4:18:57 PM

Isn't the executive branch supposed to take care that the law is faithfully executed rather than announce moratoriums on its execution?

The Left is all warm and fuzzy about Garland's unilateral moratorium on the federal death penalty. Would they be equally warm and fuzzy about an executive branch moratorium on, say, environmental laws or civil rights laws?

Just asking.

Posted by: Bill Otis | Jan 18, 2023 4:26:21 PM

SG --

Murders that happened post-McVeigh obviously were not deterred. It's the murders that did NOT happen that were deterred. If you're certain that number is zero, fine -- what's your evidence? You really think the prospect of the DP deters no one ever??

And of course the hundreds of thousands of armed robberies, rapes, kidnappings, fentanyl traffickings, etc., etc. were not deterred by the tens of thousands of criminals who got caught and sent to prison for these things. "Therefore," according to your logic, we should refrain from imprisonment, too, no?

Yeah, sure.

If a point be made of it, however, the main thing we get from the DP is not deterrence. The main thing is just punishment for unspeakable crime.

Of course, for those of you who have no interest in punishment (except for January 6 defendants), the absence of just (or any) punishment is no big deal.

Posted by: Bill Otis | Jan 18, 2023 4:38:28 PM


The most effective deterrence with the DP is that Crusius will never be able to take a weight from the prison weight room and smash a Latino’s head in.

As far as a societal deterrent, take the most obvious cases of guilt and execute about 48 hours after the sentence.

You are right. Waiting 20 years is not an effective deterrent.

Posted by: TarlsQtr | Jan 18, 2023 5:31:09 PM

It seems we have a dispute between the most vocal DP advocates on this site. Perhaps Mr. Otis and TarlsQtr should debate this issue between themselves. Is DP a deterrent or not? I look forward to the arguments.

Posted by: SG | Jan 18, 2023 6:06:46 PM

SG --

Happy to see that you don't make any effort to dispute my proposition that the main purpose of the DP is to provide just punishment for particularly grotesque murders.

TarlsQtr and I both believe -- as would anyone with common sense -- that the DP would have greater deterrent effect if it were used more frequently. But the idea that it has no deterrent effect at all ever is absurd, and I'm glad you make no effort to defend that either.

Posted by: Bill Otis | Jan 18, 2023 7:44:28 PM

There is zero distance between Bill and myself regarding deterrence.

We both believe there is but it could be much more effective if more executions were completed more quickly.

Posted by: SG | Jan 18, 2023 9:10:27 PM

Sorry, I put SG’s name instead of my own on the post above.

Posted by: TarlsQtr | Jan 18, 2023 9:11:20 PM

Some people think that making a man serve out his life's existence in a small cell is a greater punishment than death after 20 years of appeals.

Posted by: Jim Gormley | Jan 18, 2023 9:38:36 PM

Jim Gormely --

"Some people think that making a man serve out his life's existence in a small cell is a greater punishment than death after 20 years of appeals."

But that's not the reason you oppose capital punishment, is it?

P.S. "Some people" think they've been abducted by aliens, that the county can borrow money forever without consequence, that the moon landing was staged in Burbank, and that Donald Trump is a great man.

Posted by: Bill Otis | Jan 18, 2023 10:55:44 PM

Bill Otis writes sarcastically that some people think they've been abducted by aliens and that "Donald Trump is a great man." But Bill, your buddy Federalist thinks just that: that Donald Trump was a great President. Do you?

Posted by: anon | Jan 19, 2023 10:17:25 AM

Trump was a great president. He presciently armed Ukraine; he whacked Soleimani, he renegotiated NAFTA to the benefit of the USA, he changed the conversation on China; he armed Taiwan; he told the Europeans they should spend more on defense; he did the Warp Speed thing . . . .

He is distasteful personally, but this was a great president.

Posted by: federalist | Jan 19, 2023 10:46:29 AM

Jim Gormley,

I would point out that the 99% of murderers filing appeals until the moment of death disagree with you.

Posted by: TarlsQtr | Jan 19, 2023 10:48:58 AM

Hey anon, maybe your screeds can be taken seriously once you acknowledge that your guy in the WH now was accused by his own daughter (in her diary) of taking showers with her, which led to unfortunate promiscuity. How we know the diary is real--they prosecuted two people for "stealing" it--when I write "stealing" I mean "obtained abandoned property."

You guys cover for this crap.

Posted by: federalist | Jan 19, 2023 11:02:55 AM

How is that a woman does not have a right to choose but the state/federal governments have the right to take a life when a person has been convicted?

Technically, I don't have dog in this battle at all. I just think that both ideologies have these glaring hypocrisies. When those hypocrisies are highlighted, they are not harmonized: each side seems to double down on something even more ridiculous to reinforce their point.

There is no simple answer to CP. We may try to make it simple, but in a system where we cannot state with 100% certainty that all guilty people are in fact guilty, how can CP be justified? It's just a question---nothing more.

Posted by: Eric A. Hicks | Jan 19, 2023 11:14:23 AM

A woman does have the right to choose. It’s just that the choice does not come at the point you want it, as you feel people should live consequence free lives.

And we can know with 100% accuracy in some instances. Although the left likes to use DNA exonerations to show the barbarity of the DP, they forget the flip side is that the same technology can provide certainty to a degree that rounds to 100%.

Posted by: TarlsQtr | Jan 19, 2023 11:36:27 AM

Well, fortunately, I am not a member of the 'left.' You proved my point that we can know with 100% accuracy in "some instances." That you would use the "some" in this instance is problematic.

Of course there should be consequences. You haven't walked the prison halls and seen gown men crying and being systematically broken down. That's the consequence of their action. It's a sobering thing but a reminder that must be accountability in a functioning and orderly society.

I have more first-hand knowledge of what accountability/consequences looks like than you would probably ever want to know my friend. Justice and accountability has many different forms through what my eyes have witnessed.

I wonder what your sentiments would be upon finding out that someone had been put to death that was outside your class of "some"? Then again, you probably would shrug it off. But I have learned that those who are the most casual about such things are usually the ones who whimper the loudest when they feel that they are being, or have been, wronged.

Posted by: Eric A. Hicks | Jan 19, 2023 12:22:46 PM

Eric A. Hicks --

There is no evidence accepted by any neutral and informed party that we've executed a factually innocent person for at least 50 years. That would make the DP the most accurate institution in criminal law.

Of course it's possible that an innocent person has been or will be executed. But it's likewise possible that a killer we did NOT execute will do it again. Indeed, it's more than just possible; it's happened dozens of times. All of them were preventable murder if we'd had the nerve to execute the killer before he did it again.

It is also the case that guilty and dangerous criminals go free because the BRD standard is higher than it could be. Is that a reason to lower the BRD standard at trial? Not in my view. Why? Because the social good we get from having a very high standard is, on the whole, worth the social harm it produces.

Same with the DP (and any number of other social practices such as high speed limits on the Interstate, big construction projects, experimental medicines and space flight, all of which kill innocent people). The question is not just whether innocent people can (or will) die. The question is whether the practice is worth it even with that cost. And the answer for all of them is yes, as, as respects the DP, the Supreme Court and the majority of the American people have said for decades.

Posted by: Bill Otis | Jan 19, 2023 1:37:59 PM

anon --

I think that on the whole Trump was a good President. His behavior after the 2020 election has been really bad, so much so that it's clear to me that Ron DeSantis would make a much better candidate -- and much better leader than either decrepit Joe or The Donald.

P.S. How many classified documents do you have stowed in YOUR garage??

Posted by: Bill Otis | Jan 19, 2023 1:42:03 PM

Erick A. Hicks,

This will be short because you didn’t really add much meat to the discussion.

Some cases are more “slam dunk” than others. For example, is there any doubt that Crusius is guilty of the crime committed? The Boston Marathon bombers?

We don’t have to execute every person guilty in a DP eligible case. There are many we can, however, that go even beyond BRD. So, no, I didn’t prove your point.

Posted by: TarlsQtr | Jan 19, 2023 1:55:23 PM

TarlsQtr --

Correct. Mr. Hicks writes, "We may try to make it simple, but in a system where we cannot state with 100% certainty that all guilty people are in fact guilty, how can CP be justified?"

By using it in the cases where we are 100% certain, which is lots of them, including McVeigh, Bundy, and Tsarvaev. Unless Mr. Hicks thinks it was unjust to sentence those people to death. Mr. Hicks -- do you think that?

Posted by: Bill Otis | Jan 19, 2023 2:25:12 PM

I don't think opposing, e.g., torture for perpetrators of atrocities amounts to regarding the victims of those atrocities as "human garbage." But apparently at least some people on this thread think that opposing capital punishment means regarding murder victims as human garbage. I hope I'm mistaken about that view and that it was just more vapid trolling.

Posted by: John | Jan 19, 2023 2:41:43 PM

In Kentucky, where I live and work, only 5 people have been executed since 1954. Presently, there are only about 28 people on death row in Kentucky. More than half of all death sentences in Kentucky are overturned on appeal. Those whose death sentences are upheld have a far greater probability of dying of natural causes on death row than they do of actually being executed. Mr. Otis, how many years have you spent alone in a 6' by 9' cell?

Posted by: Jim Gormley | Jan 19, 2023 2:55:49 PM

No Mr.Otis, I don't think that at all. There indeed some people whom the world would be better without. I have seen several glaring examples of this throughout my lifetime. Does that mean I would be willing to give the state and/or federal governments that kind of power? I'm more ambivalent when it comes to that.

And I am sure that there are cases where the person was 100% guilty. If that's the case, then let come what may. I have not once said that I didn't believe in "an eye for an eye."

The problem, as I see it, is that we have a less than perfect justice system. And, once again, I am unwilling to cede that type of power to the state or federal government. Where does that leave us? With an imperfect system that may get it right most of the time. But what do we tell the family of the innocent person put to death? Are you saying this a) has never happened; b) can never happen or c) will never happen?

If a person commits a transgression of a certain magnitude, his justice should be severe. I don't know what severe should look like under this system of justice that we have. I have seen examples of it---far more than I care to discuss. I have said before that I have seen grown men literally 'broken down' behind bars because the gravity of their crime and the sentence that they are serving has finally settled upon them. Would it be more proper to put them to death? I don't know that I can say that with certainty.

I understand your point Mr.Otis. Your discussion is one-sided. Yes, guilty people may go free which is never a good thing. But what about the innocents who are convicted even under the BRD standard. Are you saying that this never happens? so it's two-sided. There are no simple answers in reality. Only debates such as what we are having. I will not say that any of your wrong.

In the end, as with most things, I find myself in the middle on this one. I'm neither 100% for or against. I'm just highlighting that it's a nuanced discussion.

Posted by: Eric A. Hicks | Jan 19, 2023 3:04:12 PM

"His behavior after the 2020 election has been really bad"

Read "Ball of Collusion"--the Obama Admin (including Joe Biden) tried to hamstring his presidency with a bogus Russia collusion narrative and went after Michael Flynn. Then law enforcement/intel spied on his campaign thru the Carter Page warrant. Then they tipped the scales in the 2020 election by suppressing the HUnter Biden story and Joe Biden colluded with that by lying in the PRez debate. The 2020 election was not fair, and he was under no obligation to play by Marquess of Queensbury rules after.

Posted by: federalist | Jan 20, 2023 12:01:49 PM

Jim Gormley --

"Mr. Otis, how many years have you spent alone in a 6' by 9' cell?"

The number of years I've spent in such a cell is equal to the number of felonies I've committed.

Posted by: Bill Otis | Jan 20, 2023 11:22:46 PM

federalist, the drapes are already being measured for the cell of your twice-impeached hero. As for your assertion that the "2020 election was not fair," it's clear you adhere to the MAGA mantra: if my client wins, the election was fair; if he loses, it was rigged

Posted by: anon | Jan 24, 2023 9:47:05 AM

Anon, you sure you're not talking about Stacey Abrams or Hillary Clinton? Or some of the crazies that thought that John Kerry won Ohio in 2004?

We know for a fact that the Pa. 2020 election was conducted in an illegal fashion. We know that the DOJ/FBI put its thumb on the scale regarding Hunter's laptop (and then Joe "Showers With Ashley" Biden then lied about the laptop in the debate, thus colluding with corrupt law enforcement). How can you possibly say that the election was fair??

Posted by: federalist | Jan 24, 2023 2:02:12 PM

Federalist, you write, "We know for a fact that the Pa. 2020 election was conducted in an illegal fashion." We do? Please give me the cite of the Pennsylvania Supreme Court or U.S. Supreme Court so holding.

Posted by: anon | Jan 24, 2023 2:42:26 PM

Read Section 14 of the Pa. Constitution.

Posted by: federalist | Jan 24, 2023 10:54:37 PM

Now let's see you answer my points.

Posted by: federalist | Jan 24, 2023 10:55:10 PM

Federalist, you were asked for a case so holding. You cite a constitutional provision. That is not a case.

Posted by: anon | Jan 25, 2023 10:40:03 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB