On Monday the Biden administration suffered a major setback when it failed to secure a death sentence in its first capital prosecution. A New York jury was not able to agree that the defendant in that case, Sayfullo Saipov, should be executed for his crimes, and, as a result, he will be sentenced to life in prison without parole.
In January, that same jury had convicted Saipov of committing a terrorist-inspired act when, six years ago, he ran over and killed eight people with a rented truck. He did so in an apparent effort to support ISIS.
From the start, this case seemed to fit the profile of a slam-dunk death penalty case. A gruesome mass murder. Loyalty to a terrorist cause. An unrepentant defendant.
While Attorney General Merrick Garland has stopped 25 death penalty cases that were started under previous administrations, he allowed the Saipov case to go forward.
Six other death penalty cases are still active in the Biden Justice Department. According to the Wall Street Journal, the department recently instructed its prosecutors that they can recommend death sentences in “crimes causing the most harm to the nation, including through widespread impact to the community,” though it said that each case should be evaluated “on its own merits and on its own terms.”
One of the cases in which the attorney general currently intends to seek a death sentence is the mass murder of 11 people at the Tree of Life synagogue in Pittsburgh in 2018. The defendant in that case, Robert Bowers, is due to stand trial in April.
But Garland should learn a lesson from the Saipov verdict. In the U.S. today, there are no longer any slam-dunk death penalty cases because Americans are now as likely to regard life in prison without parole as a just and appropriate punishment for the most horrible crimes as they are to favor the death penalty.
Let’s look at how the Saipov case unfolded when jurors were asked to decide how he should be punished.
In his case, as in all death penalty cases, when the sentencing trial began, the prosecution had a built-in advantage. As Marquette University professor Jesse Cheng explains, capital trials’ two-part structure (separating guilt and sentencing) helps prosecutors make typical pro–death penalty arguments seem coherent and logical, “first, in establishing the baseline evil required to commit murder, and then, in proving the aggravated, subhuman evil that would merit the ultimate punishment.”
Cheng rightly notes that “the prosecution has already made the case for the defendant’s monstrosity through the process of proving guilt,” when it then gets to present further evidence to prove the defendant and their actions are death-worthy, serving “simply to exacerbate the theme of evil that jurors have just embraced.”
At the start of Saipov’s sentencing trial, the federal prosecutors took up the story that the jury had already heard. The government’s lawyers recounted the crime in detail and reminded jurors of the “horror” of what the defendant did and of the “destruction” he caused.
The attorneys reinforced that message by presenting testimony from more than 20 witnesses, including surviving victims of Saipov’s crime and the relatives of those he killed. The stories were searing and gut-wrenching.
Typical was the testimony of a cousin of one of those who died, who said that “He was my safe place and a place to keep secrets. Every day that I go anywhere, there’s reminders of him and how the world just changed that day.”
The prosecution told the jury that Saipov “chose to attack a protected bike path on Halloween afternoon in the heart of the city filled with innocent people and surrounded by children. And he celebrates and stands by those choices without any remorse, which shows you his depravity and the danger he poses. He chose to raise the stakes of justice. That’s on him.”
It offered evidence that after his arrest, Saipov had been “eager” to tell federal agents about his terroristic plot and that he had bragged to FBI agents about how he planned and practiced his attack. He allegedly told them that his goal was to kill as many people as possible.
The prosecution drove home the Satanic picture of Saipov by telling the jury that he “smiled at the memory of his attack during an interview with federal agents in the hospital. He also asked to display an ISIS flag in his hospital room at the time.”
So why wasn’t the Biden Justice Department able to get a death sentence?
Part of the reason was the skill and strategic acumen of Saipov’s lawyer, David Patton. Patton, who is executive director and attorney-in-chief of the Federal Defenders of New York, drew on some well-established and successful strategies now used by defense lawyers in capital cases across the country.
From the start, Patton focused on saving Saipov’s life rather than securing his freedom. Because he never disputed his client’s guilt or minimized the gravity of what he did, he maintained his credibility with the jury.
Like many good death penalty defense lawyers, Patton put on evidence aimed at turning his client from a monstrous murderer and a terrorist into a human being. According to a report in the New York Times, Patton did so by “showing childhood photographs and presenting testimony from several relatives, including his father, uncle, two sisters and a grandfather, in addition to his mother.”
Saipov’s mother testified that she had been worried about her son for a long time, and that when she visited him in early 2017, he “looked tired. His eyes were tired. I thought it would be great if he left and he came to Tashkent [Uzbekistan].”
In a heartbreaking moment, she blamed herself for what her son did. “If I insisted him to come with me,” she testified, “maybe this wouldn’t happen.”
But the key to Patton’s defense was his open embrace of the harshness and severity of a life-without-parole sentence.
He showed the jury photographs of ADX, the Colorado prison where Saipov would be sent, “along with images of the maximum security unit where he would be confined to a cell at least 22 hours a day, be allowed two 15-minute phone calls per month and three escorted showers a week.”
He asked them to sentence Saipov to what Patton called “one of the most locked-away places on the planet,” and showed them a photo of the kind of cell where he would spend the rest of his life.
“The width of the room,” he said, “is the length of the bed, and “Mr. Saipov’s life will be regulated to the nth degree.”
Here Patton tapped into one of the most important facts about the death penalty in America today: that more people now favor life in prison over the death penalty as a punishment for even the most horrendous crimes.
A 2019 Gallup survey found that “60% of Americans asked to choose whether the death penalty or life without possibility of parole ‘is the better penalty for murder’ chose the life-sentencing option. 36% favored the death penalty.”
Gallup reports that between 2014, when it initially asked the question, and 2019, “All key subgroups show increased preferences for life imprisonment. This includes increases of 19 points among Democrats, 16 points among independents, and 10 points among Republicans.”
Even some families of murder victims prefer such a sentence to the death penalty, with the prolonged appeals process and the glare of publicity that death sentences bring. And there is evidence that the American public is today more open to life in prison without parole in terrorism cases than it has been in the past.
The Saipov sentencing verdict should be a wake-up call for the Biden administration. It is time for the administration to catch up with this emerging national consensus and halt all of its remaining death penalty prosecutions.
The Justice Department would be well advised to heed what Patton said about Saipov when he urged the jury to sentence him to life in prison so he could “die in obscurity, not as a hero, not as a martyr.” Attorney General Garland should learn, as Patton said, that the death penalty is not necessary “for our safety or anyone else’s, and not to do justice.”
