Sayfullo Saipov is accused of killing eight people with a truck on a west Manhattan bike path in October 2017 in a shocking crime that prosecutors say was the worst terrorist attack to strike New York since 9/11. His trial is set to begin properly in the new year.
But, aside from the shocking crime, the courtroom is also set to see a dramatic legal battle over one of the most contentious issues in American legal circles: the death penalty.
During Joe Biden’s presidential campaign, the then-candidate said he would work to end federal executions. By July 2021, Biden’s attorney general, Merrick Garland, imposed a moratorium on federal executions. Yet in the Saipov trial, federal prosecutors have publicly filed notice that they intended to seek the death penalty.
That contradiction shows that proclamations about changes to death penalty policy – even from the White House itself and the top prosecutor in the land – do not necessarily correspond with reality. They also reveal how the death penalty in the US has become deeply politicized.
The result is messy. On 16 September, the attorney general notified Manhattan federal prosecutors that he had “decided to continue to seek the death penalty”, court filings state. But Saipov’s attorney, David Patton, citing Biden’s professed policy shift during a court proceeding, has said application of this approach could bring a speedy end to protracted litigation.
Saipov, he said, would admit to the crimes if doing so would eliminate a possible death sentence. “If the government wants to bring closure to this case, it can do so tomorrow and assure that Mr Saipov never, ever leaves a prison in his life,” Patton said.
If jurors convict Saipov, then the trial will enter a second phase, during which they will decide whether to impose the death penalty. This situation has fanned the flames of skepticism about whether Biden’s moves mean there is any meaningful change to death penalty policy.
Frank Baumgartner, professor of political science at the University of North Carolina, Chapel Hill, who authored Deadly Justice: A Statistical Portrait of the Death Penalty, described Saipov’s potential death penalty as “another example of the paradoxes of the death penalty system”.
Baumgartner noted that Biden’s justice department fought to uphold the death penalty against the South Carolina church shooter Dylann Roof, and did so for the Boston Marathon bomber Dzhokhar Tsarnaev as well.
At the same time, history suggests that Roof and Tsarnaev are unlikely to be executed while Biden is in office. Although 13 federal executions were carried out during Donald Trump’s presidency, there had been “virtually no federal executions” for decades before then, Baumgartner said.
“I think it’s just a terrible tragedy and paradox of the system where certain politicians, I think, feel that they want to look quote, unquote, ‘tough on crime’,” Baumgartner said. “They support the idea of sentencing people to die, but then they put them on death row, and they go through their lengthy appeals and 10 and 15, 20 years later, when the time comes – when the appeals might be over - they simply never schedule executions.”
This situation has the effect of deferring responsibility. If a death sentence is imposed during Biden’s administration, a moratorium presumably would prevent it from happening while he is in office. But future presidencies might favor the death penalty, meaning the moratorium’s present-day impact could be meaningless.
“It’s a risky gamble on the part of, you know, somebody who says that they want to have a moratorium on executions – you’re putting more people in the queue,” Baumgartner explained. “You have no influence over what some future decision-maker will do with that queue.”
Ron Kuby, a veteran New York City defense attorney focused on civil rights, voiced similar sentiments.
“The Garland memo means that as long as Joe Biden is president, or unless he changes his mind, that they will not be executing people. However, they are perfectly willing to seek the death penalty and leave the decision as to the lethal injection up to the next president, or the one after that,” Kuby said. “So the defendant can live in a sort of perpetual uncertainty, carefully following the presidential elections because for him it will be a matter of life or death.”
“It’s sort of the typical flaccidness that has so characterized Merrick Garland. On one hand, there’s this, on the other hand, there’s that and he wants to make everybody happy,” Kuby said. “As a result, it makes no one happy – not the death penalty advocates, not the death penalty opponents.”
This uncertainty also presages the death penalty becoming a key campaign issue in the 2024 election. “It transforms that decision of life or death into the most intensely political decision that it can be, which is the opposite of what we want in matters of life and death in the justice system.”
Neama Rahmani, president of West Coast Trial Lawyers and a former federal prosecutor, said that ultimately the decision rests with the US attorney general.
“Biden doesn’t have control over it … just like when Mar-a-Lago was raided, they seized the documents, that’s something that the attorney general needs to sign off on,” Rahmani said, explaining it would be inappropriate for a president to get involved with this type of decision.
Despite the low likelihood that federal authorities would move forward with an execution in a Biden administration, defense attorneys must litigate in preparation of political shifts, said Jennifer Louis-Jeune, a veteran defense attorney.
“If there’s ever a change in administration or in policy in general, the defense attorneys obviously want to make it as fair as possible,” she said, to ensure “their client is getting a trial where there are jurors being seated who would potentially vote against it, if it’s ever back on the table”.
The justice department and White House did not respond to a request for comment.
