Before sentencing for Manhattan bike path murders, lawyers challenge DOJ death pursuit

Merrick Garland halted executions and the Justice Department has rejected several death cases, but they are still seeking a death sentence for Sayfullo Saipov. His lawyers cry foul.

Chris Geidner

Feb 3, 2023

The Justice Department is attempting to put another person on federal death row, even as Attorney General Merrick Garland halted federal executions because of concerns raised — as he himself put it — about “the continued use of the death penalty across the country, including arbitrariness in its application, [and] disparate impact on people of color,” among other reasons.

Now, the lawyers for that person, Sayfullo Saipov, are arguing that those very concerns are both at play in how Garland’s Justice Department is seeking a death sentence against their client.

Garland decided this past September to continue seeking the death penalty against Saipov, who was found guilty of murder last week for the October 2017 terror attack along a bike path in Manhattan that killed 8 and injured many more. (The death prosecution was originally authorized during the Trump administration by then-Attorney General Jeff Sessions, but Garland decided in September 2022 to continue seeking death in the case.) The sentencing phase, when jurors will decide whether to recommend death or life in prison for Saipov, is to take place beginning Feb. 13.

This is the only death sentence the Justice Department has sought at trial under Garland — although the Department has also fought to uphold prior convictions that resulted in a sentence of death, including against Dzhokhar Tsarnaev, convicted for the 2013 Boston Marathon bombing, and Dylann S. Roof, convicted for the 2015 shooting at Emanuel African Methodist Episcopal Church in Charleston, South Carolina.

The decision in Saipov’s case, though, led to a filing by Saipov’s lawyers this week arguing that the court should strike DOJ’s death notice in the case and sentence Saipov to life “because of the arbitrary pursuit and implementation of the federal death penalty.”

Summarizing their argument, Saipov’s lawyers described how DOJ has chosen “not to seek the death penalty” in other significant cases — both not seeking death in new cases and withdrawing death prosecutions in others — and how Garland himself halted executions because of arbitrariness concerns.

Sayfullo Saipov stands as the only federal defendant nationwide against whom the Department of Justice is seeking the death penalty at trial. In light of recent decisions by DOJ not to seek the death penalty against a host of death-eligible defendants, Mr. Saipov renews his motion to dismiss the government’s death notice because the federal death penalty is arbitrarily sought and imposed in violation of the Fifth and Eighth Amendments. Decisions by the current DOJ administration over the past two years, and in particular in the past few months, not to seek the death penalty in cases with greater numbers of victims and equally horrific facts, along with its decision to impose a moratorium on all federal executions in part because of concerns about the arbitrary application of capital punishment, highlight the capricious and unconstitutional nature of the federal death penalty.

The filing also highlighted President Biden’s campaign pledge to end the federal death penalty and claimed that no “discernible, principled basis for distinguishing” other murder cases where DOJ is not seeking the death penalty — “some with greater numbers of victims” — from Saipov’s case exists.

President Biden ran on a platform promising to abolish the federal death penalty. Since his swearing in, President Biden’s administration has elected not to seek, or de-authorized, dozens of federal capital cases involving intentional murders, some with greater numbers of victims than present here. There is no discernible, principled basis for distinguishing those murders, where the federal death penalty was neither sought nor imposed, from Sayfullo Saipov’s case. The Constitution does not tolerate such arbitrary application of the death penalty; accordingly, the Court should strike the government’s death notice and sentence Mr. Saipov to life imprisonment.

If the court is unwilling to strike DOJ’s death notice, Saipov’s lawyers asked the court to grant them discovery regarding “DOJ’s decision-making process” in determining to pursue the death penalty against Saipov alone.

Later in the filing, Sapiov’s lawyers raised the way in which former President Donald Trump responded to the attack, as well as DOJ’s handling of the case in the Biden administration in explaining their concerns:

From the beginning, this case has been colored by Mr. Saipov’s status as a Muslim immigrant from Uzbekistan. … Trump’s nakedly political exploitation of the truck attack to advance anti- immigration policy that targeted Muslim immigrants is inextricably intertwined with his demand that Mr. Saipov face the death penalty. And it is an even more disturbing feature of Mr. Saipov’s capital prosecution in light of the Biden Administration’s decision to seek death against Mr. Saipov alone nationwide, despite his willingness to plead guilty, waive all appeals, and spend the rest of his life in prison in the most secure wing of the most secure prison in the world.

The filing did not, however, directly mention the terrorism aspect of Saipov’s case. As The New York Times described it, Saipov “said after his arrest that he was inspired to carry out the attack by Islamic State videos that he watched on his phone.” One of the non-capital charges of which Saipov was convicted last week was for “providing material support” to ISIS.

Given Garland’s past — overseeing the Justice Department’s response to the Oklahoma City bombing in 1995 — it’s possible that he simply views terrorism-related cases differently. The continued defense of Tsarnaev and Roof’s death sentences serve as further support for that theory.

And yet, among the cases raised by Sapiov’s lawyers to advance their arbitrariness argument is the January decision by DOJ not to seek the death penalty against Patrick Crusius — who Saipov’s lawyers described as “a white man who shot to death 23 shoppers in an El Paso Walmart (and injured at least 22 more) for the purpose of ‘defending my country’ from ‘the Hispanic invasion of Texas’ according to a racist, anti-immigrant screed he posted online the day of his attack.”

Saipov’s lawyers likely raised Crusius’s case to challenge any anticipated response from the Justice Department that Saipov’s case stands out as a terrorism-related case (or due to the number of victims).

As a final note, the July 2021 memorandum from Garland halting executions did more than simply halt executions or address execution protocols. In the final portion of Garland’s moratorium memorandum, he ordered the review of changes made to the Justice Manual relating to executions during the Trump administration, but then asks whether those “or any other provisions within Title 9, Chapter 10” — the chapter addressing all aspects of the federal death penalty, including charging decisions and decisions to withdraw intentions to seek the death penalty — “should be rescinded or modified.”

C. Review ofJustice Manual Provisions. In December 2020 and January 2021, the Department adopted changes to Title 9, Chapter 10 ofthe Justice Manual to expedite the execution of capital sentences. See, e.g., J.M.§§ 9-10.190(8), 9-10.210. Those changes were a departure from longstanding practice. I am therefore asking the Deputy Attorney General, in consultation with the Criminal Division and all other relevant components, to review the changes to Title 9, Chapter IO and consider whether and to what extent those changes or any other provisions within Title 9, Chapter IO should be rescinded or modified.

In other words, Garland halted all executions during this review and has not authorized any new death penalty prosecutions, but he has allowed a new death penalty trial to proceed during that review and is now allowing his prosecutors to pursue a death sentence during the review.