Sending mixed signals is a tried and true tactic for politicians seeking to please people on all sides of a contentious political issue. But the Biden administration's on again, off again policy on the federal death penalty is truly head-spinning.
This was made especially clear on Oct. 12, when jury selection started in the federal death penalty prosecution of Sayfullo Saipov, an Uzbek man charged in a 2017 truck attack that killed eight people on a crowded Manhattan bike path. He allegedly carried out this attack as a step toward joining the Islamic State, or ISIS.
At the time of the attack, then-President Trump tweeted that Saipov "SHOULD GET DEATH PENALTY."
Because state law in New York does not authorize the death penalty, Saipov could not face execution without federal intervention. Not to disappoint his boss, Jeff Sessions, who was attorney general at the time, authorized a federal prosecution.
But it didn't happen before Trump left office, in the chaotic aftermath of Jan. 6. So the Biden Justice Department, under new Attorney General Merrick Garland, was left to decide what to do about Saipov. Its decision to proceed with a capital prosecution marks the first time Biden's DOJ will go to trial seeking to put someone to death.
What makes this decision so surprising is that during the 2020 campaign Biden appeared to embrace the abolition of the death penalty, raising hopes that he would make it a national priority to end the death penalty, both at the federal level and across the country.
Indeed, since Biden came into office, the administration has taken some steps in that direction. In July 2021, for example, the DOJ moved to withdraw capital punishment requests in seven cases where federal prosecutors under the Trump administration had been pursuing them.
At the time, as a New York Times article noted, "It was not immediately clear whether the decision to withdraw the death penalty authorizations in the seven cases was part of a broader effort, and the Justice Department has not announced policy changes in how or when the government seeks the death penalty."
That same month, Garland imposed a moratorium on federal executions, which seemed to suggest that the administration's opposition to the death penalty was a sincere priority.
As if reading from the abolitionist playbook, Garland said, "Serious concerns have been raised about the continued use of the death penalty across the country, including arbitrariness in its application, disparate impact on people of color, and the troubling number of exonerations in capital and other serious cases."
Without a doubt, both the withdrawal of the capital prosecutions and the moratorium were significant steps.
But only a few months later, the Biden Justice Department seemed to do an about-face. Among other things, it urged the Supreme Court to reinstate the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev — and got its way in March of this year, when the court announced its decision in that case.
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In court proceedings the administration also made clear its support for the 2017 death sentence of Dylann Roof, who killed nine Black parishioners in June 2015 as they prayed during Bible study at Emanuel African Methodist Episcopal Church in Charleston, South Carolina. As the Washington Post reported, Roof was "the first person sentenced to death for a federal hate crime."
In July 2021, Merrick Garland imposed a moratorium on federal executions and gave a speech straight out of the abolitionist playbook. But only months later, the Justice Department did an apparent about-face.
Even so, Garland's September announcement that the administration would move forward with Saipov's capital prosecution came as a surprise. It was particularly hard to understand since this case, like the others where Garland had reversed Trump-era decisions, was also a leftover.
Indeed at the time the DOJ withdrew the other capital prosecutions, Saipov's lawyer, David E. Patton, said he was hopeful he could persuade the government not to seek the death penalty for his client. He claimed that doing so would be in keeping with Biden's campaign promise to end the death penalty.
Patton even offered an incentive to the administration, saying that Saipov would plead guilty and serve a life sentence if the threat of a death sentence were withdrawn. "I doubt there would be a trial, period," he said.
But the Justice Department evidently declined that offer.
This refusal was no mistake, nor was it the result of a bureaucratic snafu. It required Garland's explicit endorsement. Justice Department regulations lay out a clear and thorough process in which the attorney general must himself sign off on any and all capital prosecutions.
Those prosecutions are initiated by U.S. attorneys who send their recommendations to the Criminal Division in Washington, which has a specialized unit charged to receive and review them.
Regulations say such recommendations must be accompanied by "a death penalty evaluation form for each defendant charged with a capital offense, a detailed prosecution memorandum, copies of indictments, written materials submitted by defense counsel in opposition to the death penalty, and other significant documents and evidence as appropriate."
They further specify that if the Criminal Division agrees to a capital prosecution, the case must be sent on to "the Attorney General's capital case review committee," consisting of senior DOJ lawyers. "The review committee meets with the Capital Case Unit attorneys, the U.S. Attorney and/or the prosecutors in the U.S. Attorney's office who are responsible for the case, and defense counsel. During this meeting, defense counsel are afforded an opportunity to present any arguments against seeking the death penalty for their client."
After that process is complete, the review committee forwards its recommendation and all documentation to the attorney general, who "makes a final decision as to whether a capital sentence should be sought in the case."
The decision to withdraw a capital prosecution or to proceed in the Saipov case would not have been made by anyone but Attorney General Garland.
Despite President Biden's public hands-off policy with regard to the Justice Department's prosecution decisions, Garland's choice to move forward with Saipov prosecution is hard to square with the president's commitment to end the federal death penalty.
Horrible crimes, such as Saipov's, unquestionably present the real test of that commitment. Furthermore, his prosecution seems at odds with the administration's death penalty moratorium. Are federal prosecutors really going to ask jurors to go through the agonizing process of deciding whether to sentence someone to death, even though the DOJ has no intention of carrying it out?
Polls show that public perception of rising crime has become a serious political problem for the Biden administration. Perhaps a death penalty prosecution and death sentence, in a notorious terrorism case, is a move to appease critics. If so, it is a grotesque and empty gesture.
The president and the attorney general should stop the Saipov case in its tracks and heed the call of 17 U.S. senators who have asked the administration to institute a new policy prohibiting federal prosecutors from seeking the death penalty. That would be the course of true courage and commitment.
from Austin Sarat on our broken justice system