Though President Biden campaigned against capital punishment, Attorney General Merrick Garland is charting his own course in pursuing the death penalty in the trial of Sayfullo Saipov.
On Halloween 2017, Sayfullo Saipov plowed a rented pickup truck down Manhattan’s crowded West Side bicycle path, smashing into pedestrians and cyclists, killing eight people and injuring more than a dozen, the authorities said.
Soon after Mr. Saipov was charged, President Donald J. Trump tweeted, “SHOULD GET DEATH PENALTY!” And his attorney general later directed prosecutors to seek execution if Mr. Saipov was convicted.
Last year, Mr. Saipov’s lawyers asked President Biden’s Justice Department to withdraw that order. Mr. Biden, after all, had campaigned against capital punishment. But his attorney general, Merrick B. Garland, denied the request, and on Monday, Mr. Saipov’s trial is scheduled to begin in Federal District Court in Manhattan — the first federal death penalty trial under the Biden administration.
Mr. Garland’s decision to continue pursuing the death penalty for Mr. Saipov, an Uzbek immigrant, suggests a nuanced approach, one in which he has been reluctant to withdraw the threat of capital punishment in one type of case in particular: terrorism-related offenses.
His decision has stirred debate among some legal scholars and death penalty activists. Some argue that he should adhere to the anti-death-penalty stance Mr. Biden took in his campaign, while others note that the president has never announced any formal policy position on capital punishment.
Since taking office nearly two years ago, Mr. Garland has not sought capital punishment in any new case and indeed has declared a nationwide moratorium on federal executions. The Justice Department has also withdrawn directives issued by previous administrations seeking the death penalty against 25 federal defendants, according to court records and the department’s data.
At the same time, the department has defended appeals of the death sentences imposed during President Barack Obama’s administration on Dzhokhar Tsarnaev, the Boston Marathon bomber, and Dylann S. Roof, the white supremacist who killed nine members of a Black church in South Carolina.
“It’s very hard to make sense of the way the Biden administration is thinking about and proceeding with the federal death penalty,” said Austin Sarat, a professor of law and political science at Amherst College, who has long written critically about capital punishment.
“Biden’s stance against the death penalty on the campaign trail was, I think, an important signal to many about what this administration might do,” Mr. Sarat said. “The moratorium on federal executions? That’s welcome. But there’s no sign of anything beyond that.”
Michael B. Mukasey, the attorney general under President George W. Bush from 2007 to 2009, said he was uncertain what standard Mr. Garland was using in federal death penalty cases but he believed he had one.
“Clearly, he is following laws Congress passed by recognizing at least that the death penalty should be sought in some cases, regardless of President Biden’s contrary views,” Mr. Mukasey said. “I think that is a principled decision, and very much the right thing to do.”
Federal death penalty trials have been relatively rare, especially in Manhattan. The last executions in Manhattan federal death penalty cases occurred in the 1950s, most notably of Julius and Ethel Rosenberg for espionage. More recently, federal executions were paused for nearly two decades, until the Trump administration put 13 people to death in the final six months of his tenure. There are currently 44 federal death row prisoners, according to the Death Penalty Information Center.
A spokesman for the Justice Department said that as a matter of policy it does not offer public reasons for decisions to withdraw death penalty directives. Nicholas Biase, a spokesman for the U.S. attorney’s office in Manhattan, and David E. Patton, a lawyer for Mr. Saipov, declined to comment on the case.
But some lawyers said a pattern had emerged: None of the 25 defendants for whom the Justice Department has withdrawn death penalty requests were charged in a terrorism-related offense.
“Early on, it became clear that notwithstanding the statements made by both the president and the attorney general, that there was going to be this sort of carve-out around terrorism,” said Anthony L. Ricco, a veteran death penalty defense lawyer in New York.
“The only question in our minds was whether or not that was going to include what some people call domestic terrorism,” Mr. Ricco added.
Federal prosecutors, in seeking capital punishment for Mr. Saipov, described what they called his planning, premeditation and lack of remorse. They said that the attack was intended to “further the ideological goals” of the Islamic State, a terrorist organization, and that Mr. Saipov targeted the bike path on Halloween “to maximize the devastation to civilians.”
The high number of murders charged against Mr. Saipov does not appear to have been pivotal to Mr. Garland’s decision to seek capital punishment. In November, the Justice Department withdrew a death penalty request made in St. Louis against Anthony Jordan, an alleged gang enforcer known as “Godfather,” who had been charged with involvement in 11 murders in a drug conspiracy case.
Critics say Mr. Garland’s decision was inconsistent with Mr. Biden’s position, even if Mr. Saipov is charged with terrorism.
“What the administration is doing is thinking, We can crack the door open for this one case,” said Mark Osler, a professor at the University of St. Thomas School of Law in Minneapolis. “History tells us that a door that’s cracked open tends to be shoved open over time.”
The jurors are likely to be presented with graphic evidence and testimony about the attack, in which Mr. Saipov said he was inspired by ISIS videos he had watched on his phone. The assault ended after he drove the truck into a school bus, jumped out and waved pellet and paintball guns while shouting “Allahu akbar,” Arabic for “God is great,” according to a federal complaint. Mr. Saipov was arrested after he was shot in the abdomen by a police officer.
Of the eight fatalities, six were tourists, five from Argentina and one from Belgium. The other victims were a 24-year-old computer scientist from Manhattan and a 32-year-old financial worker from New Jersey.
It was the deadliest terrorist attack in New York City since Sept. 11, 2001, the authorities have said.
In January 2018, even before the decision to seek the death penalty in Mr. Saipov’s case was announced, his lawyer, Mr. Patton, the city’s federal public defender, said in a court filing that his client would plead guilty and accept a life sentence if prosecutors dropped the death penalty from consideration. The proposal was not accepted.
After Mr. Biden took office, Mr. Patton made it clear in court that the offer still stood. But on Sept. 16, prosecutors wrote to Judge Broderick that “the attorney general has decided to continue to seek the death penalty.”
Mr. Garland, asked at his February 2021 confirmation hearings about capital punishment, said that his views had evolved.
As a Justice Department lawyer, he had led the investigation into the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, which killed 168 people and injured hundreds more. One of the convicted bombers, Timothy McVeigh, was executed in 2001 by lethal injection.
“I supported the death penalty at that time for Mr. McVeigh in that individual case,” Mr. Garland testified. “I don’t have any regret.” But he added that he had “developed concerns about the death penalty in the 20-some years since then.”
He said the sources of his concern were the “sort of arbitrariness and randomness of its application because of how seldom it’s applied and because of its disparate impact on Black Americans and members of other communities of color.” He also cited the large number of DNA exonerations in death penalty and other cases.
He also acknowledged Mr. Biden’s opposition to the death penalty, as well as a president’s power to impose “an across-the-board moratorium.”
“The Supreme Court has held that the death penalty is constitutional, but it is not required,” Mr. Garland said. “And that’s within the discretion of the president.”
Mr. Garland testified that the president had the authority to make policy decisions that could affect the department broadly, and that he was not talking about the president deciding on how a particular case should go forward. Mr. Garland later instituted rules strictly limiting contacts between the White House and his department, although the guidelines allow communications related to policy issues.
In July 2021, Mr. Garland ordered the nationwide halt to all federal executions, pending a review of the department’s policies and procedures.
At the time, a White House spokesman, Andrew Bates, said Mr. Biden approved of the decision.
“As the president has made clear, he has significant concerns about the death penalty and how it is implemented, and he believes the Department of Justice should return to its prior practice of not carrying out executions,” Mr. Bates said.
The White House did not respond to a request for comment on Mr. Saipov’s trial.
Despite the president’s opposition to the death penalty and his support for Mr. Garland’s moratorium, Mr. Biden has not directed the attorney general to rule out capital punishment in all cases, said Rachel E. Barkow, a law professor at New York University, who specializes in sentencing.
Of Mr. Biden, she said, “I’m not sure he feels comfortable unilaterally pulling it back in every single case.”
She added that it did not seem fair to criticize Mr. Garland for leaving the death penalty “on the table,” as she put it, “because I don’t think that President Biden has made clear that it is off the table.”
Source: nytimes.com, Benjamin Weiser, January 7, 2023
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde