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Tsarnaev’s Sentence: A Deeply American Choice

Jurors in the Boston bombing trial have found Dzhokhar Tsarnaev guilty of murder and other horrific acts of violence. They now have to make the difficult choice of deciding which punishment is most appropriate for his crimes: the death penalty or life without parole (LWOP).

The sentencing decision would be quite different in other parts of the world.

The Unites States’ continued commitment to capital punishment makes it unusual among developed nations. 140 out of 196 countries (over 70 percent) worldwide have abolished the death penalty in law or practice, including many of our trading partners and political allies. In the countries without it, capital punishment is viewed as a human rights violation.

In Europe, a country must abolish capital punishment before it will be admitted to the European Union. All 35 members of the Organization for American States — with the sole exception of the United States — have no executions. In 2014, the United States once again joined Iran, Iraq and Saudi Arabia at the top of the list of countries that use the death penalty (China too most likely belongs on this list, but accurate data is not easily available).

Although the demise of capital punishment in the U.S. is not imminent, support for it seems to be waning. Last year, there were 35 executions and 73 death sentences imposed — the lowest numbers in recent history. 32 states continue to have the death penalty on the books, but only a small fraction of those states — and, more accurately, only a small fraction of counties within those states — continue to actually execute death row inmates. 18 states — Massachusetts among them — have no death penalty at all. Indeed, one reason Tsarnaev is being tried in federal court is to ensure that the death penalty was a punishment option.

To be clear, a majority (61 percent) of Americans continue to support capital punishment. But that number is lower than previously recorded. And when offered the choice between capital punishment or LWOP, a majority of Americans, for the first time ever, say they prefer LWOP. Less than 20 percent of Massachusetts residents, and only 15 percent of Bostonians, believe Tsarnaev should be sentenced to death, even though that is ground zero for Tsarnaev’s devastation.

If the jurors do not vote for death, Tsarnaev will be sentenced to LWOP, which would not permit him to be released or to ever be considered for release. Sometimes called a “death in prison” sentence, LWOP ensures that an offender will be incarcerated forever, and often under conditions of severe deprivation.

Unlike in the United States, some countries across the world have begun to seriously question the use of LWOP sentences. In Germany, France, Italy, Portugal, Norway and Spain, LWOP has been abolished. The same is true in Brazil, Costa Rica, Columbia, El Salvador, Peru and Mexico. These countries have determined that, like the death penalty, imprisonment with no possibility of release is inconsistent with human rights.

Consider that under the Rome Statute, which has nearly 100 signatories, a person convicted of even the most horrific offenses — including war crimes and genocide — must have their sentence reviewed after 25 years. Or that in Norway, Anders Brievik, who killed 77 people and injured hundreds more in a deadly bomb attack and shooting massacre, received a maximum prison sentence of 21 years, which can be extended indefinitely in five year increments, but only after review and a determination that he is a continued threat to society.

In the United States, however, LWOP means exactly what it promises: no possibility for review and no possibility of parole release. Over 50,000 people in the United States are serving an LWOP sentence, and short of executive clemency or pardon, each and every one of them will die in prison.

When the penalty phase of his trial is over, Tsarnaev will be punished severely and permanently — with a sentence of either death or LWOP — for the terroristic acts that destroyed so many lives on that sunny marathon morning.

But whatever punishment the Boston bombing jury deems appropriate in this case, it will have chosen a sentencing option that is deeply, and particularly, American.

Published in the Huffington Post 05/04/2015.

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