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As the Supreme Court considers whether to reinstate Boston Marathon bomber Dzhokhar Tsarnaev’s death sentence, it is faced with a far more fundamental question: In a society that constitutionally prohibits cruel and unusual punishment, does the criminal justice system have in place the necessary safeguards to prevent it in capital cases?

The answer, revealed during Wednesday’s oral arguments, seems to be no.

A majority of the court’s justices made it fairly clear that they are not interested in examining this foundational problem, and Tsarnaev’s return to death row appears all but certain.

The defendant, who, along with his brother, carried out the terror attack that killed three and injured hundreds, and later executed an MIT police officer while on the run, deserves not an ounce of sympathy. That is perhaps why the Biden administration, despite its stated opposition to the death penalty and its current moratorium on federal executions, chose to defend Tsarnaev’s death sentence rather than allow a federal appellate court ruling tossing it out to stand.

But no matter how repugnant the actor, the strength of the Eighth Amendment’s protections against cruel and unusual punishment shouldn’t be compromised. This case shows there aren’t enough guardrails to protect it.


The current system of capital sentencing is underpinned by a 1976 ruling, Gregg v. Georgia. Four years after all executions were halted by a previous ruling, the justices in Gregg allowed capital punishment to be carried out again but under more limited circumstances. The decision outlawed, for example, automatic death sentences for certain crimes.

It also prohibited death sentences from being imposed in an arbitrary or capricious way.

Since then, individual states and the US Justice Department have tried to walk that constitutional tightrope by, among other things, allowing juries to consider evidence of aggravating and mitigating factors at the capital sentencing phase. That’s the key issue the court focused on during Wednesday’s arguments.


Tsarnaev’s attorney argued that the trial court judge erred by barring a statement implicating Tsarnaev’s brother, Tamerlan Tsarnaev, in a 2011 triple murder in Waltham. Tamerlan was killed during a police pursuit of the brothers in the days after the bombing.

That statement from another suspect in the Waltham murders, who was killed in 2013 while being questioned by an FBI agent, would have been a mitigating factor for jurors to consider in deciding whether Dzhokhar was unduly influenced by his violent elder brother to participate in the bombing, the attorney argued.

Justice Elena Kagan was among the handful of justices who seemed swayed.

“This court let in evidence about Tamerlan poking somebody in the chest, this court let in evidence about Tamerlan shouting at people,” Kagan said, “all because that showed what kind of person Tamerlan was and what kind of influence he might have had over his brother. And yet, this court kept out evidence that Tamerlan led a crime that resulted in three murders?”

Kagan’s right — all of these issues are for the jury to consider. The minute a judge substitutes his or her own judgment, a thumb is placed on the scale of justice in a way that makes it impossible for the full protections of the Eighth Amendment to be in place — if they ever can be when a defendant’s life is on the line.


This is why courts have allowed extensive mitigating evidence to be admitted in the penalty phases of those accused of the most heinous acts in history, from Terry Nichols’s trial, for his role in the Oklahoma City bombings, to the trial of James Holmes, the gunman who killed 12 and wounded dozens in a movie theater massacre in Aurora, Colo. And in those cases, the juries imposed life sentences, not death.

“Probably the clearest Eighth Amendment principle in death penalty cases is that the sentence must be based on an individualized assessment of the defendant’s moral culpability,” said Robert Dunham, executive director of the Death Penalty Information Center. “We require a unanimous agreement by the jury [for the death penalty]. We should not be hiding from them critical facts that could affect that judgment.”

Consider the words of the late Supreme Court Justice John Paul Stevens, the Republican-appointed jurist whose tenure on the court was marked by, among other things, his gradual realization that squaring the death penalty and the Eighth Amendment was impossible.

“I dissented in the ways we allowed for picking juries and on the permissible scope of evidence allowed in a death penalty hearing,” Stevens said in a 2015 interview. “I became increasingly disenchanted with the operation of the death penalty. I did conclude in my own mind that it was unconstitutional.”

The Tsarnaev arguments showed the court is moving in the opposite direction. But such a result won’t affect only Tsarnaev. It will also weaken the Constitution for us all.


Kimberly Atkins Stohr can be reached at kimberly.atkinsstohr@globe.com. Follow her on Twitter @KimberlyEAtkins.