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Death penalty can express society's outrage – but biases often taint verdict

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In its hearing on Oct 13, 2021, the Supreme Court appeared to favor reinstating the death sentence for Dzhokhar Tsarnaev, who was found guilty of planting homemade bombs, with the help of his brother, Tamerlan, along the crowded Boston Marathon route on April 15, 2013. The bombs killed three people and injured 260.

As the brothers evaded police, they killed a police officer and injured many others. In attempting to escape, Dzhokhar Tsarnaev accidentally killed his brother by running him over with a vehicle.

Prosecutors brought the case to the Supreme Court after the First Circuit Court of Appeals overturned the death sentence for Dzhokhar Tsarnaev on the grounds that the prospective jurors were not screened sufficiently about their exposure to media coverage of the bombing, and the jurors were not given evidence of Tamerlan’s past crimes.

Tsarnaev’s lawyers wanted jurors to consider the influence of his older brother as a mitigating factor to lesson his sentences, and the evidence of Tamerlan’s past violence was a key part of that argument.

I study criminal law and punishment as a political institution, including how it must fit within the values of a liberal democracy to be justified. Tsarnaev’s case is complicated because of the immense harm he caused to so many people.

My research examines how punishment affects members of society beyond the criminals and their victims. One of the key ways that punishment has a broader social effect is its capacity to express strong moral condemnation of actions that violate the basic rights of members of society.

But punishment also expresses moral condemnation of the criminal. This is where the risk comes in because a strong negative attitude toward one individual can reinforce prejudicial stereotypes about racial and ethnic groups.

Punishment and collective condemnation

Joel Feinberg, one of the most influential philosophers of law in the 20th century, explained that punishment has an “expressive function.” By this, Feinberg meant that punishment expresses the idea that the government condemns the criminal action. Criminal conviction is not enough to express moral........

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