« Reviewing prosecutions and sentencings two years after January 6 Capitol riots | Main | Wondering about the impact of AG Garland's new charging and sentencing memos »

January 7, 2023

Noticing the shape of the federal death penalty circa 2023

Just under 20 years ago, in the inaugural issue of the Ohio State Journal of Criminal Law, Carol Steiker and Jordan Steiker authored this fascinating little article imagining the death pemalty circa 2022.  The article's title, "Abolition in Our Time," reveals that the piece did not perfectly predict the future.  But the piece did have this somewhat prescient take on how "the politics of the death penalty have shifted":

Prominent politicians in both parties are willing to oppose the death penalty publicly, though very few make it a political priority. Many such leaders also distinguish between the importance of retaining the death penalty for cases in which "vital national interests" are at stake — the war on terrorism — and cases involving ordinary state law enforcement.

The Steikers' article came to mind for me today as I read this new New York Times piece discussing the current state of the federal death penalty. The piece is headlined "Suspect in Bike Path Killing Faces First Death Penalty Trial Under Biden," and here are excerpts:

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....

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....

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.

January 7, 2023 at 09:52 PM | Permalink


Although I generally oppose the death penalty, I can understand the emphasis on terror-related cases. What perplexes me is why has there been a reluctance to label those who sit behind computers and radicalize segments of the population by willfully peddling conspiracy theories---which are corroborated by nothing in reality---as terrorists?

We are all witnessing in 'real time' the results of their destructive radicalization whether it be from those who feel emboldened to threaten public officials or overthrow the government based on their dissatisfaction with the results of a fair election. The peddlers and perpetrators are terrorist because their actions constitute a direct attempt to undermine the democracy through intimidation and fear.

Nothing in my comments should be construed as supporting the death penalty because I do not. Rather, I would like to see a more serious commitment from our government in identifying and punishing the radicalizers and the radicalized. That Congress has not introduced (and passed) legislation to address this destructive behavior---presumably, out of fear of incensing their constituency---is disheartening and reveals something about America that some of us do not wish to acknowledge.

Posted by: Eric A. Hicks | Jan 9, 2023 7:57:20 AM

On Mr. Hicks's comments, I would note two Supreme Court cases this term -- the Google case and the encouraging illegal immigration cases. The Google case involves civil liability for search algorithms recommending radicalizing videos based on the user's search terms and past history on the web site. The encouraging immigration case involves the First Amendment limits on criminalizing mere speech even if the speech ultimate leads to criminal conduct by the recipient. The opinions in those two cases will define the universe of what options are available for going after the radicalizers.

Posted by: tmm | Jan 9, 2023 11:01:11 AM


Your comments are well-received. It certainly appears that the Supreme Court is doing its job in providing some type of guidance, so to speak, as to the reach of 47 U.S.C. 230 and what speech, if any, should be limited under the First Amendment. Even if one may not ultimately agree with what the Court ultimately decides, they are to be commended for at least addressing the issues.

The problem is that Congress can, and should, do more. I'm not an advocate for this mass expansion of the U.S. Code to a point where it governs all aspects of our lives. However, if Congress were as serious about home-grown radicalization/terrorism as it was about the horrendous effects of crack cocaine and street gangs, there would be statutes that would allow experienced and able prosecutors to begin to dismantle this web of disinformation and those who chose to undermine the democracy because of it.

I've seen the havoc that prosecutors can wreak with statutes that cover broad swaths of conduct such a 18 U.S.C. 1962. I've seen Senators aggressively interrogate a prospective Supreme Court Justice for her decision in a compassionate release proceeding but remain mum about what should be done to confront radicalization.

But you do make very valid points which I hope that others share because it will shape the debate and policy involving this topic as time progresses.

Posted by: Eric A. Hicks | Jan 9, 2023 11:43:45 AM

Confront radicalism. What would that be--seeing the FBI (i.e., law enforcement) getting involved in US elections to suppress a story thereby giving covered to law enforcement's favored candidate to lie through his teeth on a debate stage--and calling BS? Or would it be yelling at school board members who covered up a rape? Would it be giving an Antifa guy's axe back?

Posted by: federalist | Jan 9, 2023 11:57:28 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB