President Biden’s failure to make good on a campaign promise to eliminate the federal death penalty has paved the way for capital prosecutions to continue – including the trial of accused West Side Highway terrorist Sayfullo Saipov set to begin in Manhattan on Monday, legal experts told The Post. 

During the 2020 presidential race, Biden’s campaign said on its website that he would “work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example” if elected.

Since then, Attorney General Merrick Garland has issued a moratorium of federal executions – but the White House has not issued a policy on the death penalty, Robert Dunham, the executive director of the Death Penalty Information Center told The Post. 

“There is no White House policy with respect to the death penalty,” Dunham said. 

That vacuum has resulted in the Department of Justice making death penalty determinations on a case-by-case basis, Dunham added, including in the prosecution of Saipov, an immigrant from Uzbekistan who allegedly killed eight people by ramming into them on a bike path in Lower Manhattan on Oct. 31, 2017.

“There’s no question that the failure to set a policy to implement his campaign promise has resulted in the Justice Department taking action in individual cases that contradicts his campaign promise,” Dunham said. 

Federal prosecutors are seeking the death penalty in the Saipov case – though the accused ISIS-inspired terrorist has said through his lawyers he would agree to plead guilty and serve life in prison if it were taken off the table. 

The lack of a clear policy from the Biden administration – which would not constitute executive overreach into the DOJ – has angered death penalty opponents, Dunham went on. 

“If you set a policy that says we are not seeking the death penalty, that’s not interference in individual cases. That’s a policy. That’s what Biden failed to do and that’s why the death penalty opponents are so frustrated,” he said. 

Seasoned New York attorneys were also left scratching their heads about the seemingly paradoxical move by the DOJ to seek the death penalty in the Saipov case when there is a moratorium on executions. 

“Even If the death penalty is in fact imposed, the moratorium would likely prevent Saipov’s execution, at the very least, during Biden’s presidency,” said defense attorney Julie Rendelman. 

“However, that does not mean it will never be imposed when and if a new president with potentially differing positions on the death penalty is elected,” she added. 

Attorney Jeffrey Lichtman, who has repped Joaquin “El Chapo” Guzman and John Gotti Jr., said the decision to seek the death penalty would waste millions of dollars in taxpayer money – and suggested it was a ploy by the Biden administration to appear tough on crime. 

“Frankly it’s idiotic,” Lichtman told The Post. “There’s no logical explanation for the inconsistency between the Attorney General’s directive and what the Department of Justice is doing now.”

“I don’t even know that a New York jury would vote for the death penalty,” he added. “This is just Biden trying to appear tough on crime. No other rational explanation.”

Saipov faces a slew of terrorism, murder and other charges for the attack. Opening statements in his trial are scheduled to begin Monday morning before Judge Vernon Broderick in Manhattan federal court.