A notable discussion of federal capital decision-making for mass shootings (that makes no mention of differing state sentencing realities)

The AP has this new lengthy discussion of DOJ decision making in two high-profile federal prosecutions of mass shooters that completely leaves out that one defendant will be facing state capital charges while the other will not.  The piece is headlined "How DOJ made different death penalty decisions in the Pittsburgh synagogue and Texas mall massacres," and here are some excerpts:

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 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 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....

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 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.

This AP discussion is quite interesting, though it struck me as quite notable that the full article makes no mention at all of the fact that Patrick Crusius, the Walmart mass shooter, is certainly going to face a Texas state capital trial (as noted in local press).  Robert Bowers, the synagogue mass shooter, is likely not to face a Pennsylvania capital trial (and would almost certainly not get executed even if he did since the state has not executed anyone in nearly a quarter century).  I do not know if DOJ policies and practices make state laws and practices a formal consideration in capital prosecution decision-making, but I suspect it always has a way of influencing it.