veiled4allah: issues in penal law

Some people feel that the existing form of the prison system in America is unjust and inhumane. Some people go even further and say that incarceration as a punishment is itself inhumane. After all, human beings are locked up in what amount to cages (i.e., the prison cells) where they have next to no privacy and have to offer complete obedience at all times to corrections officers and to ask permission for almost anything they do. An argument can be made that imprisonment is really a form of slavery, and a particularly cruel form at that since the prisoners are kept locked up.

We're not used to thinking like this. It's taken as a given in America that prison is far more humane than corporal punishment. But is it? The body heals; the mind and the soul may not. When we consider whether the prison system is humane we should look at the psychological damage caused by captivity. It's not as easy to measure as physical damage, but it may be far worse and more lasting.

I found a some articles on the web about this including Prisoners' Justice Issues and Abolish Prisons.

One of the alternatives to incarceration that is promoted is restorative justice. Some Muslim scholars promote restorative justice from within the Islamic tradition. Here is a summary of part of a book (which does not appear to be available online) by Nawal Ammar.

The mention of Islam of course brings to mind the corporal punishments that are notorious in the West. First, we have to go back to a point that I made above. Is incarceration actually even more inhumane than corporal punishment?

As part of an extremely heated debate in my comments section awhile ago about implementing the Shari'a, Jonathan Edelstein said:

My personal opinion on flogging? I'm uncomfortable with corporal punishment, but sometimes it may be less cruel than prison. If I had the choice between going to jail for five years or taking 50 lashes and getting it over with, I think I'd go for the whipping. Corporal punishment also doesn't deprive a family of a wage-earner for an extended period of time. Prison is cruel too, in the form of violence and rape as well as confinement - the difference is that the cruelty takes place behind closed doors.

This same point is made in some Muslim critiques of incarceration; see The Jail Punishment and Regarding Punishments by Confinement in Jail.

But there is a second issue and this one is far more important. What are the circumstances under which the punishments can actually be meted out? If you look at places like Afghanistan and Nigeria, you would think that all somebody needs to do is bring forth an accusation and the hand is cut off or the flogging commences. This is not correct. It is a distortion and indeed a perversion of Islamic law.

There are standards of proof that must be met. Specifically, a certain number of witnesses need to have actually seen the crime in progress and the offender must have deliberately intended to break the law. For most crimes, there must be two witnesses. For fornication (both heterosexual and homosexual) and adultery, for instance, the standard of proof is that four witnesses saw the act of penetration. When was the last time you saw or heard of two people completing the sexual act in public, in front of at least four people? Have you ever heard of it? That should give you an idea of how rare this punishment should actually be. Similarly, a theft must be witnessed by at two people and the thief was not stealing out of hunger or some other desperate need.

If the standards of proof are not met, the fixed punishments (called hudud in Arabic) cannot be meted out. Instead, the judge can apply a discretionary (ta'zir in Arabic) punishment. As the name implies, these punishments are not fixed by the Shari'a, but are at the discretion of the judge or the ruler or legislature. The relationship between hudud and ta'zir punishments is explained in Hudud, Ta'zir, and Qisas.

(Qisas refers to the principle of retaliation for assault and murder. The Quran permits, but does not require, retaliation in kind. What do I mean, it doesn't require? The decision rests with the victim or the victim's family. The victim or family can seek retaliation, or they can accept a restitutive payment, or they can forgive the offender. Restitutive payment (diya in Arabic) is also the punishment set for manslaughter. The Quran strongly recommends that the victim seek restitution or offer forgiveness because this erases sins and is better in God's sight. Also, remember that the attack must have been witnessed and deliberate.)

All crimes other than those specified as hudud are considered to be ta'zir, meaning that even their maximum sentence is completely discretionary.

What's the point of all of this? If an Islamic society truly upheld the standards of proof, the harsh corporal punishments like flogging and cutting off the hand would only be meted out on a small number of brazen criminals who deliberately commit their crimes in front of others (and, presumably, in defiance of those others' attempts to stop them or talk them out of it). And the rest of the penal code could be of whatever form that the society felt was best. This could be other types or corporal punishments (as in the past), or incarceration (as in the modern Muslim world), or even (yes) restorative justice.

Properly understood, Islamic penal law is not nearly as harsh as groups like the Taliban would lead one to believe. Properly understood, Islamic penal law is quite flexible and allows for the implementation of a system of restorative justice, limiting corporal punishments to those hardened criminals who have not responded to anything else. Is that more humane than America's prison-industrial complex? I think so.