“How can you defend someone like that?”
It is the question hurled at every criminal defense lawyer who represents people who have caused great pain. It is the question renewed after Payton Gendron’s homicidal slaughter in Buffalo. The textbook answer is that the lawyer doesn’t defend her client’s behavior. Instead, she holds the government to its burden by zealously defending her client’s rights. Every defense lawyer learns this answer by heart and recites it as a kind of secular catechism of professional responsibility. I’ve given it hundreds of times.
But I don’t anymore. It’s not that the answer is wrong. It’s absolutely correct, and nothing is more honorable in the practice of law than standing next to a person facing the angry wrath of a vengeful state and demanding the strictest compliance with the law. But a defendant’s legal rights exist only at the whim of legislators and judges. Legal rights are therefore ephemeral, as we know from the likely imminent demise of Roe v. Wade. They secure only the sphere of human activity that legislators and judges consider worth protecting at that moment, which means rights are always subject to the twisting winds of political preference and social pressure.
In giving the textbook answer, the lawyer thus implies that the human being standing beside her is not particularly important; it is the bundle of legal rights that matter. The client is a mere vessel, the Spanish galleon that carries the gold doubloons below deck. They are the precious cargo. The person be damned. The textbook answer therefore participates in and contributes to the dehumanization that sustains the carceral state.
So, I have begun to give a different answer. It is the answer I give for every client, but especially those charged with the most serious crimes. It is the answer I would give if I represented Payton Gendron. I defend his humanity. I defend against the impulse, so powerful at this moment, to cast him out from humanity’s circle, reduce him to his deed, and imprison him in his past.
I know that for many people this sounds impossibly, dangerously naïve. They prefer the familiar comfort of an unforgiving society. The day after the shooting, for instance, New York Republican Congressman and gubernatorial candidate Lee Zeldin called on Governor Hochul and the New York legislature to “bring back the death penalty.” Tellingly, his call studiously avoided any mention of the radicalization that Gendron experienced online. So far as I can tell from Zeldin’s campaign and congressional websites, as well as his Facebook page and his Twitter account, Zeldin has made no comparable call to examine the influence of the white supremacist vitriol that inspired Gendron to act. In fact, he seems not to have mentioned it at all. To Zeldin, Gendron is simply a disembodied avatar of evil, murdering without explanation or history. And Zeldin is hardly alone; many insist that Gendron be executed for his crime.
Perhaps the purest expression of an unforgiving society appeared in the opinion pages of the Baltimore Sun, where psychologists Richard Vatz and Jeffrey Schaler heaped shame upon New York for having abandoned capital punishment. To them, Gendron is simply a “monster,” “an example of evil personified,” for whom death is the only socially responsible fate. Consumed by rage, they are singularly uninterested in the wider canvas. “It doesn’t matter why he did it,” they assure us. What matters is that “[h]e did it; he must pay for his acts.”
Contemptuous of both Gendron’s personal history and the social context that created the “monster” they would now slay (or better, that they would have someone else slay), Vatz and Schaler do not pause to wonder how or why a child born with promise could become filled with hate. Worse, they disallow even the possibility that an 18-year-old could ever be anything other than what he was that day. This is literally what it means to entomb someone in their past. To Vatz and Schaler, Gendron’s crime is his coffin. In fairness to them, I’m sure many people agree.
I have confronted this attitude my entire professional life and recognize it as the calling card of an unforgiving society. As I have written before, an unforgiving society—our society—“is dogmatic and moralistic, quick to condemn but slow to inquire. It is uncurious, ungenerous, and unyielding.” This is the world I want to change.
It doesn’t mean I condone what Gendron did or think he should escape responsibility. I condemn what he did and believe, if he is convicted, he should be punished. But I want to live in a world where every transgressor is judged with an eye to the complexity of causation and the frailty of humanity. Where punishment aspires to bring back rather than cast out. Where society treats all of us as all of us would ask to be treated, including especially those who have sinned—namely, in a spirit of forgiveness. This doesn’t mean that Gendron, or anyone who has caused great pain, has a right to be forgiven. Only those he has wronged can forgive him and that is a choice for them alone. It means that society should judge and punish him secure in the knowledge that he is and will always be within our circle, even if he is in prison.
That is why Gendron’s past and future matter. Not because they exclude the present, but because they fix that present in a long arc, shaped by a past whose lines can never be erased but giving way to a future that can still be written. Those who knew Gendron describe him as quiet and studious but also isolated and lonely. Matthew Cassado, a classmate and friend, said the other students didn’t want to hang out with Gendron because “they didn’t want to be known as friends with a kid who was socially awkward and nerdy.”
Even Casado palled around with Gendron only because Gendron’s mother called Casado’s mother with a parent’s saddest plea: Please ask Matthew to call Payton because he has no friends and needs to talk. Gendron was thus denied what none of us can live without—the feeling that he belonged. Neighbors did not see the violence building within him, but in accelerating isolation and desperation, Gendron seems to have turned to the only place that welcomed him wholeheartedly and gave him the sense of belonging that all of us need—the fetid, toxic swamps of online persecution and rage.
I do not represent Gendron and do not know his mind or heart. I do not know the particulars of the trajectory that led him to Buffalo. But I have represented people like Payton Gendron for decades and I will not cast him out. I would stand next to him, despite the pain he has caused and the harm he has done, and insist that he is one of us. That’s how I can defend someone like that.
