Case 1:22-cr-00109-LJV Document 192 Filed 07/19/24 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

v. 22-CR-109-V

PAYTON GENDRON,

Defendant.

GOVERNMENT’S RESPONSE IN OPPOSITION TO DEFENDANT’S

MOTION FOR AN ORDER CATEGORICALLY EXEMPTING PAYTON
GENDRON FROM THE DEATH PENALTY BECAUSE HE WAS EIGHTEEN
YEARS OLD AT THE TIME OF THE ALLEGED CAPITAL CRIMES (DOCKET
NO. 182)

The United States of America, by and through its attorneys, Trini E. Ross, United

States Attorney for the Western District of New York, and Kristen M. Clarke, Assistant

Attorney General, Civil Rights Division, and Joseph M. Tripi and Brett A. Harvey, Assistant

United States Attorneys, Laura Gilson, Trial Attorney, Civil Rights Division, and Michael

Warbel, Trial Attorney, Criminal Division, of counsel, respectfully submits this response in

opposition to the defendant’s Motion For An Order Categorially Exempting Payton Gendron

From The Death Penalty Because He Was Eighteen Years Old At The Time Of The Alleged

Capital Crimes [Docket No. 182].

The defendant moves the Court for extraordinary relief: to create a categorical

exemption to capital punishment for those adults who are 18 years of age at the time they

commit a capital murder. Relying on social and scientific studies, he suggests such persons,
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because only of their age, are “insufficient[ly] culpab[le]” to warrant a sentence of death.1

Docket No. 182 at 1. In so moving, the defendant asks this Court to “extend” the holding of

Roper v. Simmons, 543 U.S. 551 (2005), in which the Supreme Court created a categorical

exemption from the death penalty for juveniles, that is, offenders below the age of 18, and

strike the death notice against him. Id. at 2-3, 21. As set forth below, this Court is prohibited

from granting such relief. Moreover, other courts that have considered the same request have

resoundingly held that the Supreme Court’s decision in Roper remains binding. Accordingly,

this Court must deny the defendant’s motion and request for an evidentiary hearing.

LAW AND ARGUMENT

A. This Court Lacks Authority to Extend Binding Supreme Court Precedent from
Roper.

When the Supreme Court has directly decided an issue, lower federal courts must

follow the case that directly controls, leaving to the Supreme Court the prerogative of

overruling or altering its own decisions. See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997)

(requiring the Courts of Appeals to adhere to directly controlling Supreme Court precedents,

even those that rest on reasons rejected in other decisions); United States v. Aquart, 912 F.3d 1,

49 (2d Cir. 2018) (“Whatever the merits of Aquart’s argument, only the Supreme Court can

overrule Gregg [v. Georgia, 428 U.S. 153 (1976)] or recognize exceptions thereto.”). Because

the Supreme Court has directly decided the issue of whether the Eighth and Fourteenth

Amendments forbids the death penalty for offenders over the age of 18, this Court lacks any

authority to alter binding Supreme Court precedent.

1
As described below, the law permits that the defendant’s arguments regarding his age and
any purported deficits in brain development are more properly to be presented for the jury’s
consideration as mitigation information at a potential capital sentencing hearing.

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In Roper, the Supreme Court, referring to its “evolving standards of decency”

jurisprudence, 543 U.S. at 560-61, held that the “Eighth and Fourteenth Amendments forbid

imposition of the death penalty on offenders who were under the age of 18 when their crimes

were committed.” Id. at 578. The Court reasoned that “objective indicia of consensus”

against executing juveniles dictated a finding that juveniles are “categorically less culpable

than the average criminal.” Id. at 567 (internal quotation marks and citation omitted), 567-

68 (citing state laws forbidding juvenile executions, the infrequency of juvenile executions,

and the consistency of the movement away from juvenile executions). Exercising its

independent judgment, the Court also found that “general differences between juveniles under

18 and adults demonstrate that juvenile offenders cannot with reliability be classified among

the worst offenders.” Id. at 569; see also id. at 569-70 (explaining that juveniles demonstrate a

“lack of maturity and underdeveloped sense of responsibility,” “are more vulnerable or

susceptible to negative influences and outside pressure,” and that their “character . . . is not

as well formed as that of an adult”) (internal quotation marks and citations omitted).

Importantly, the Roper Court recognized its careful consideration of the nuances

presented in “drawing a line” at 18 years of age:

Drawing the line at 18 years of age is subject, of course, to the objections always
raised against categorical rules. The qualities that distinguish juveniles from
adults do not disappear when an individual turns 18. By the same token, some
under 18 have already attained a level of maturity some adults will never reach.
For the reasons we have discussed, however, a line must be drawn. . . . The age
of 18 is the point where society draws the line for many purposes between
childhood and adulthood. It is, we conclude, the age at which the line for death
eligibility ought to rest.

Id. at 574.

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The defendant acknowledges the hard line set for categorical exemption in Roper at 18

years of age and expressly asks this Court to “extend” Roper’s holding to those age 18, if not

18-21. See Docket No. 182 at 2-3, 12. The defendant cites no statutory or legal authority in

support of his categorical exemption to the death penalty, and the Supreme Court has

rendered the defendant’s reliance upon any such studies moot. Simply put, the defendant

asks this Court to do something it simply cannot. See Aquart, 912 F.3d at 49.

Applying this rule, circuit courts hearing appeals in the prosecutions of Dzokhar

Tsarnaev (a 19 year-old male who perpetrated the 2013 bombing upon the Boston Marathon

that resulted in the deaths of three persons and injury to 264 others, as well as the subsequent

shooting-murder of a police officer) and Dylan Roof (a 21 year-old male who committed a

2015 racial hate crime attack upon Black parishioners at a Charleston, South Carolina church

that resulted in the deaths of nine persons) rejected claims to expand Roper nearly identical to

the one made by this defendant. See United States v. Roof, 10 F.4th 314, 378-80 (4th Cir. 2021);

United States v. Tsarnaev, 968 F.3d 24, 96-97 (1st Cir. 2020).2 In both cases, the appellants

submitted studies similar, if not the same, to those cited by the defendant here, to argue that

the cut-off age for the death penalty should be raised because younger adults’ brains continue

to develop. See Roof, 10 F.4th at 378 (noting that Roof argued that studies “eroded the

justification relied upon in Roper for drawing the line for capital punishment at 18”) (internal

quotation marks and citation omitted); Tsarnaev, 968 F.3d at 96 (“Looking for support,

[Tsarnaev] argues that ‘scientific research’ since Roper ‘has explained the effects of brain

2
Just as the defendant failed to recognize in his arbitrariness motion, see Docket No. 181, the
binding negative authority from the Second Circuit in Aquart, he has failed here to
acknowledge these persuasive opinions from Tsarnaev and Roof, which directly refute his
claims.

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maturation, or the lack thereof, on the behavioral and decision-making abilities of late

adolescents in their late teens and early twenties.’”). The opinions from the Fourth and First

Circuits are directly on point and highly persuasive.

The First Circuit noted in Tsarnaev that the appellant had conceded, “as he must – that

the Supreme Court has ‘drawn a bright line’ for death eligibility ‘at age 18.’ He just thinks

that the factors Roper considered relevant in granting death-penalty immunity to persons

under 18 . . . apply equally to persons under 21.” 968 F.3d at 96 (citing and quoting Roper,

543 U.S. at 569-79). The court held that Tsarnaev could not show error, “given Roper’s square

holding that 18 is ‘the age at which the line for death eligibility ought to rest.’” Id. at 97

(citation omitted). The court concluded that, though the change Tsarnaev proposed was

“worthy of careful consideration,” as an “‘inferior’ court,” “we simply note that whether a

change should occur is for the Supreme Court to say – not us.” Id.

In Roof, the Fourth Circuit reached the same conclusion when considering the

defendant’s same argument:

Roof argues that we should read Roper expansively. But Roper’s holding is a
categorical ban on executing juveniles in the same way that Atkins is a categorical
ban on executing the intellectually disabled. And if a Supreme Court precedent
has direct application in a case, as Roper clearly does, then we must follow it.
The Supreme Court chose to draw a line at the generally accepted age of
majority, 18, and did so acknowledging that age and culpability were not
perfectly linear. We have no authority to hold that executing those who are
older than 18 violates the Eighth Amendment because . . . whether a change to
Roper should occur is for the Supreme Court to say.

10 F.4th at 379 (internal quotation marks and citations omitted; emphasis in original).

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Further, recognizing that the Supreme Court had granted certiorari in Tsarnaev to

determine whether the First Circuit properly set aside Tsarnaev’s death sentence on other

grounds, the Roof court stated: “Given the parallel arguments that Tsarnaev and Roof make,

the Court may decide whether to modify Roper. Until then, Roper is the controlling

precedent.” Id. at 380. However, the Supreme Court did not address the Roper holding when

it reviewed and reversed the First Circuit’s Tsarnaev opinion, reinstating Tsarnaev’s death

sentence. See United States v. Tsarnaev, 595 U.S. 302 (2022).

Here, this Court is constrained by Supreme Court precedent, just as the appellate

courts were in Tsarnaev and Roof. The Supreme Court set a “categorical” rule in Roper, and it

is only for that Court to revisit such holding and expand it. Alternatively, Congress may

decide to raise the statutory limit for capital punishment. See Roper, 543 U.S. at 567 (noting

“Congress considered the issue when enacting the Federal Death Penalty Act in 1994, and

determined that the death penalty should not extend to juveniles”). In contrast to 18-year-

olds, “juveniles are not trusted with the privileges and responsibilities of an adult,” and as

such, “their irresponsible conduct is not as morally reprehensible as that of an adult,” Id. at

561 (internal quotation marks omitted, citing Thompson v. Oklahoma, 487 U.S. 815, 835

(1988)). Roper clearly established the line for a categorical exemption from the death penalty

at 18. This Court has no role in expanding such line. Only the Supreme Court (or Congress)

can now change that. Accordingly, this Court must deny the defendant’s motion.3

3
Given that the defendant’s motion fails as a matter of law, it is not for this Court to assess
whether there is national consensus on exempting 18-year-olds from capital punishment,
though it is worth noting that the defendant does not cite to a single jurisdiction that
specifically exempts this group from capital punishment (setting aside those jurisdictions that
have abolished the death penalty altogether). And, though the defendant highlights a decline
in imposition of the death penalty for younger adults, this overlooks the fact that two of the

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We find further support for this conclusion in United States v. Sierra, 933 F.3d 95 (2d

Cir. 2019), a case cited by the defendant. In Sierra, the Second Circuit rejected an invitation

to expand the Supreme Court’s categorical exemption on mandatory life sentences for

juveniles to those who were between the ages of 18 and 22: “Since the Supreme Court has

chosen to draw the constitutional line at the age of 18 for mandatory minimum life sentences,

the defendant’s age-based Eighth Amendment challenges to their sentences must fail.” 933

last seven persons sentenced to death under the FDPA were 21 or younger at the times of
their crimes – Tsarnaev and Roof.

Further, though the Supreme Court has, at times, exercised its “independent
judgment” when determining whether evolving standards of decency should determine
whether eligibility exemptions should be made for capital punishment, see Roper 543 U.S. at
570-74, it is certainly not for this Court to use its independent judgment to expand Roper. As
reflected in Roper, the Supreme Court has struggled with whether it is even appropriate for the
high court to, itself, insert its independent views on this subject. Compare, 543 U.S. at 561
(noting the Court exercised independent judgment in Thompson) and 570-71 (exercising
independent judgment in Roper, itself) with id. at 562 (noting the Court had “‘emphatically
rejected’ the suggestion that the Court should bring its own judgment to bear on the
acceptability of the juvenile death penalty” in Stanford v. Kentucky, 492 U.S. 361 (1989), where
the Court refused to extend the cut-off for exemption for the death penalty from 16 to 18 years
of age); see also id. at 574-75 (discussing inconsistency in exercising independent judgment).
Thus, this Court must also not delve into the studies cited by the defendant or the merit, if
any, to his arguments that younger adults (e.g., persons ages 18-21) exhibit the type of
immaturity, susceptibility to peer pressure, and transitory belief systems that led the Roper
Court to expand the constitutional eligibility limit for capital punishment from 16 to 18.

Roper shows that the Court will reconsider the age cut-off, if it deems that doing so is
appropriate. In fact, that is exactly what the Court did in Roper, where the Court reconsidered
its decision in Stanford (refusing to set the cut-off at age 18) and expanded the ruling from
Thompson (which had previously set the cut-off at 16). See 543 U.S. at 561-63 (discussing
Thompson and Stanford). Further, it is worth noting the extraordinary nature of the defendant’s
request and dangerous precedent the Court would set. As reflected throughout Roper, 18-
years-old, the generally accepted age of majority in this country, is the age at which persons
can, among other things, vote, marry, serve on juries, and serve in the armed forces. A
decision to exempt younger adults from capital punishment on the grounds that they are
immature, too vulnerable to peer pressure, or too transitory in their beliefs could call into
question the ability of these same persons to exercise fundamental autonomy and participate
in the most basic of our civic duties as Americans. Again, this is simply beyond the reach of
this trial court.

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F.3d at 97 (refusing to expand rule set by the Supreme Court in Miller v. Alabama, 567 U.S.

460 (2012)) (internal citation omitted). Despite the fact that Sierra was not a capital case, the

Second Circuit’s rationale is highly persuasive, if not binding, on this Court.

The defendant’s suggestion that Sierra should not apply here because it was not a

capital case and “death is different,” Docket No. 182 at 3 n. 2, is misplaced. The government

does not cite Sierra to argue that because the Second Circuit has found that life sentences are

not cruel and unusual punishment for 18 to 22-year-olds, that death sentences must also not

constitute cruel and unusual punishment. Rather, Sierra supports the limited proposition that

courts in this Circuit must adhere to the doctrine of stare decisis. There is no basis in the

Supreme Court’s capital jurisprudence for the doctrine of stare decisis to operate differently in

capital cases than in non-capital ones. Just as the Sierra court was bound by the Supreme

Court’s holding in Miller, this Court is bound by the Supreme Court’s holding in Roper.

Finally, the defendant’s reliance on Hall v. Florida, 572 U.S. 701 (2014), and Moore v.

Texas, 581 U.S. 1 (2017), is also without merit. The defendant asserts that the Supreme Court

decisions in those cases “require significant deference to the consensus of the scientific

community when evaluating the Eighth Amendment’s bar on cruel and unusual

punishment.” Docket No. 182 at 2. Hall and Moore, however, are inapposite here. Neither

case dealt with the propriety of a categorical exemption to the death penalty. Rather, both

dealt only with the technical assessment of intellectual disability, i.e., how courts should

determine whether a person is intellectually disabled. Specifically, Hall held that scientific

advancements indicated that it was not appropriate to require a defendant to demonstrate an

IQ score of 70 or below as a prerequisite to establishing intellectual disability. See Hall, 572

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U.S. at 711-12, 723. Moore dealt with how Texas courts determined if a person was

intellectually disabled, and particularly, how they failed to give credit to views of the medical

community. 581 U.S. at 5-7.

Here, the defendant wrongly conflates technical assessment of intellectual disability

and the propriety of a categorical age-based exemption to the death penalty. In United States

v. Gonzalez, 981 F.3d 11, 20-21 (1st Cir. 2020), the First Circuit aptly distinguished Moore in

denying a 20-year-old’s Eighth Amendment challenge to multiple life sentences, explaining

that the defendant improperly “elevate[d] scientific research about brain development from

one of many factors to the sole determinant of where a line should be drawn between youthful

offenders and more mature offenders.” In doing so, the court noted Moore’s inapplicability.

Id. at 21 n.3 (“We add, moreover, that the defendant over-reads Moore [ ], which did not

revamp the Court’s holistic approach to the Eighth Amendment. Moore addressed only the

isthmian question concerning how courts should determine if a defendant facing the death

penalty ‘qualified as an intellectually disabled.”). The same is true here. Neither Hall nor

Moore had any role in establishing that a categorical exemption from the death penalty applies

for those who are intellectually disabled. Their emphasis on the importance of scientific

evidence is misplaced here, and therefore, this Court must not countenance either case.

B. The Defendant may Present Information Regarding his Purported Youth as

Mitigation at a Potential Capital Sentencing Hearing.

Though this Court may not grant the relief the defendant seeks, the law entitles the

defendant to present evidence of his age, maturity, and other mitigating circumstances during

the capital sentencing hearing. The system is designed to consider both aggravating and

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mitigating circumstances, including youth, in every case. See Roper, 543 U.S. at 572; see also

Eddings v. Oklahoma, 455 U.S. 104, 110-12 (1982) (recognizing broad right of a capital

defendant to present evidence relating to any mitigating factor, including his/her background,

character, prior record, or the circumstances of the offense); 18 U.S.C. § 3592(a) (providing

capital defendants broad ability to present any mitigating factor). Here, subject to evidentiary

standards set forth in 18 U.S.C. § 3593(c), the defendant may present evidence regarding his

age, purported immaturity or impressionability, and/or purported deficiencies in brain

development, among other topics, as mitigation information at a potential capital sentencing

hearing. Because an appropriate procedure exists for the presentation of such mitigating

information — and more importantly, as the Court lacks the authority to do so — this Court

need not feel obligated to follow the defendant’s urging to extend existing Supreme Court

precedent.

C. An Evidentiary Hearing is not Warranted.

An evidentiary hearing is not warranted. Ordinarily, an evidentiary hearing is only

required if “contested issues of fact . . . are in question.” United States v. Pena, 961 F.2d 333,

339 (2d Cir. 1992). Moreover, if facts urged in support of a hearing would not entitle the

moving party to relief as a matter of law, no evidentiary hearing is required. See Gentile v. Cty.

of Suffolk, 926 F.2d 142, 148 (2d Cir.1991); see also United States v. Fugate, No.

121CR127LJVMJR, 2022 WL 18359077, at *1 n.1 (W.D.N.Y. July 13, 2022), report &

recommendation adopted, No. 21-CR-127-LJV-MJR, 2023 WL 279815 (W.D.N.Y. Jan. 18,

2023) (denying evidentiary hearing where there are no contested issues of fact). The

defendant proffers no contested facts to be determined at the hearing. And, more importantly,

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this Court lacks the authority to grant the relief sought. Accordingly, the defendant’s request

for an evidentiary hearing should be likewise denied.

CONCLUSION

For the reasons set forth above, this Court should deny the defendant’s motion and

request for an evidentiary hearing.

DATED: Buffalo, New York, July 19, 2024

TRINI E. ROSS KRISTEN M. CLARKE

United States Attorney Assistant Attorney General
Western District of New York Civil Rights Division

BY: s/JOSEPH M. TRIPI BY: s/LAURA B. GILSON

s/BRETT A. HARVEY Trial Attorney
Assistant United States Attorneys Civil Rights Division
United States Attorney’s Office U.S. Department of Justice
Western District of New York 150 M Street NE
138 Delaware Avenue Washington, DC 20530
Buffalo, New York 14202 202-598-1141
Laura.Gilson2@usdoj.gov

BY: s/MICHAEL S. WARBEL

Trial Attorney
Criminal Division
U.S. Department of Justice
1331 F. St. NW, Ste. 623
Washington, DC 20004
(202) 514-5605
Michael.Warbel@usdoj.gov

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