The Biden administration suffered a loss this week when a Manhattan federal jury declined to sentence a convicted terrorist to death. But if President Joe Biden is against the death penalty — as he has claimed to be — then how could it be a loss?
That the government failed to reach its goal in this case doesn’t detract from the oddity of pursuing that goal in the first place.
The question highlights the ongoing inconsistency in his administration’s capital punishment position. Biden ran on a platform of abolishing the death penalty, but the Department of Justice has defended existing death sentences on appeal during his administration. And in the case of that convicted terrorist, Sayfullo Saipov, the Biden administration sought what would have been its first new death sentence. Had Saipov been sentenced to death and lost any appeals while Biden is still president, then Biden may have had to confront his contradictory policy head on, in deciding whether to carry out an execution that his administration made possible.
True, Biden’s attorney general, Merrick Garland, has imposed a moratorium on carrying out executions. But that only highlights the absurdity of Saipov’s case, where the government attempted to secure a death sentence — the necessary precursor to an execution. That the government failed to reach its goal in this case doesn’t detract from the oddity of pursuing that goal in the first place.
Before the verdict came down in Saipov’s case, I wondered whether a potential death sentence would be illusory if Biden didn’t intend to carry it out. The jury’s decision means that the question goes unanswered. But as the DOJ continues to defend existing death sentences on appeal, Biden may not be able to run from his own administration forever. And even if he avoids having to decide whether to execute anyone, Biden’s effective decision to keep the death penalty system alive may simply set the stage for a future Trump-style execution spree, the sort of thing that he seemingly ran against.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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