Biden’s making a troubling U-turn on the death penalty

When he was running for office, Joe Biden made a promise: to work “to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.” While his administration initially seemed headed towards that goal, it has now taken a U-turn and is seeking to kill the defendant in a case going to trial in New York. 

It is an unfortunate development for an administration that is at its best when it takes a clear moral stand and sticks to it, as it has with American support of Ukraine in its conflict with Russia. 

The new case involves Sayfullo Habibullaevic Saipov, who is on trial for the killing of eight people on New York’s West Side Highway in 2017. On Sept. 18, the U.S. attorney for the Southern District of New York filed a notice that the attorney general “has decided to continue to seek the death penalty,” rather than withdraw that request prior to trial. And, with that, the Biden administration broke with a loud snap the promise it made to work toward eliminating the federal death penalty. 

Biden’s initial direction was the right one, as the rational reasons to finally get rid of the death penalty are well-established: It does nothing to deter crime, it sullies our moral position internationally, it cuts against the ethic of life that underlays murder statutes themselves, it too often is targeted at innocent people, and turns out to be strikingly expensive. While the death penalty is often premised on the idea it is done for the benefit of the victim’s family members, it is wrong to assume that all family members are vindictive, even in the most serious cases — sometimes, they weigh in against the death penalty. Through executions, we gain nothing in terms of public safety but pay dearly in terms of heart and treasure. 

Though Joe Biden once chided President George H.W. Bush for not using the death penalty enough, by the time he ran for president in 2020 his position seemed clear: one of the bullet points on his criminal justice agenda read simply “Eliminate the death penalty.” While campaigning in New Hampshire, he pumped up the crowd (or tried to) by telling his audience “By the way, congratulations to y’all ending the death penalty here,” and seemed genuinely concerned about the threat of executing innocent people.  

At the start of the Biden administration, there were promising signs. During his confirmation hearing, Attorney General Merrick Garland described the application of the death penalty as “almost randomness” and decried the racial disparities it created. He seemed to mean it, too. After a Trump administration that executed 13 people over the course of seven months, in his first nine months as attorney general, Garland quietly withdrew the government’s request for capital punishment in a dozen cases and issued a moratorium on executions.  

For those who oppose trusting the government with the task of killing people, things were looking good. But those waters were soon troubled.  

Last October, the Department of Justice reversed course and asked the Supreme Court to reinstate the death sentence for Boston Marathon bomber Dzokhar Tsarnaev, after the First Circuit Court of Appeals had overturned it (without affecting the underlying conviction). They got their way, and the death sentence was reinstated. 

In the case of Dylann Roof, who was convicted of murdering nine Black church members in Charleston, S.C. in 2015, Biden’s Department of Justice similarly (and successfully) pushed to maintain a death sentence on appeal. In both the Tsarnaev and the Roof case, some of the victims’ surviving family members objected to the use of the death penalty while others supported it. 

In the Tsarnaev and Roof cases, the Biden administration was defending death sentences imposed during a previous administration (president Barack Obama’s), not seeking it in a new case it was bringing to trial. Some might think that with a moratorium on executions in place, the pursuit of the death penalty doesn’t matter because it is unlikely to lead to an execution. Recent events show the folly of that kind of thinking. 

After a botched execution in Oklahoma in 2014, the Obama administration informally imposed a moratorium on executions while the process was studied. That moratorium ended up only delaying, not preventing, the execution of many on death row in the waning months of the Trump administration. 

Now the Biden administration is completing the U-turn and replicating the mistake made by Obama, in actively seeking the death penalty in a case not yet tried while declaring a moratorium that supposedly keeps actual execution at bay — a combination of actions that reveals a lack of principle and integrity as the administration simultaneously embraces and rejects capital punishment. 

It’s not too late to straighten the path — beginning with the Saipov case.

Mark Osler is a professor at the University of St. Thomas School of Law in Minneapolis.