Penal Justice System in Islam


Photo: American Prisoners

Introduction

Recent visit of President Obama to a federal prison and his announcement of reducing prison population is good news. But the fact is the United States has an incarcerated population of well over 2 million, and has earned the unenviable distinction of being the world’s largest jailer, ahead of China and Russia. And every day more and more persons are put into prisons - more than any other nation in the world.  The U.S. has 5 percent of the world’s population, but 25 percent of its prisoners.

A study of the federal prison system carried by the research wing of the U.S. Congress was published by Inter Press Service on February 5, 2013. It warned that three decades of “historically unprecedented” build-up in the number of persons incarcerated in the United States have led to a level of overcrowding that is now “taking a toll on the infrastructure” of the federal prison system.

According to the report over the past 30 years the federal prison population has jumped from 25,000 to 219,000 inmates, an increase of nearly 790 percent. “This is one of the major human rights problems within the United States, as many of the people caught up in the criminal justice system are low income, racial and ethnic minorities, often forgotten by society,” said Maria McFarland, deputy director for the U.S. program at Human Rights Watch.

McFarland observed that as a consequence of imposing very harsh sentencing policies in recent years more juveniles and very elderly people are being put in prison. “And between 2007 and 2011, the population of those over 64 grew by 94 times the rate of the regular population. Prisons clearly aren’t equipped to take care of these aging people, and you have to question what threat they pose to society – and the justification for imprisoning them.”

The above conclusions apply equally well to all of the states, and the county and local prisons in the United States.

Faith Commonalities: Care for the Captive, and Sanctity of Life

Islam is part of the Abrahamic faiths and as such shares with Judaism and Christianity the same faith-based values of the love of God and of the service to humankind. Service to humankind includes understanding of and compassion for those placed in prisons, for whatever reasons. Such as the Qur’anin injunction: “And they feed for the love of God, the indigent, the orphan and the captive” (Al Insan 76:8).

Islam is equally emphatic on life being sacred. This principle is laid down clearly: “If anyone kills a person – unless it be for murder or for spreading mischief in the land – it would be as if he killed all people. And if anyone saves a life, it would be as if he saved the life of all people” (Al Maida, 5:32). And: “Take not life, which God has made sacred, except by way of Justice and law. Thus does He command you, so that you may learn wisdom” (Al Anam 6:151).

Distinctive Features of Islam

1.  Although humans are forgetful and subject to machinations of Satan and their own weaker self, Islam categorically discards the concept of original sin. Adam was tested by God, not to punish him or his progeny and make human race suffer consequences of his eating the forbidden fruit. It was to show Adam that he is bestowed with a will, or ability to choose between the alternatives of right and wrong – a characteristic that distinguishes humans from angels.

Adam erred and asked for forgiveness of the Almighty; and the Most Forgiving accepted and forgive him. “Then learnt Adam from his Lord words of inspiration, and his Lord turned to him; for He is Oft-Returning, Most Merciful” (Al Baqarah 2:37). And: “But his Lord chose him for His Grace: He turned to him, and gave him Guidance” (Taha 20:122).

2. On the contrary, Islam tells that humans are created on a good nature - called Fitra (inherent natural pattern): “So set your face steadily and truly to the faith: establish God’s handiwork according to the pattern on which He has made mankind” (Al Rum 30:30).

It is, therefore, assumed that a person is innocent unless proven guilty. Thus while circumstantial evidence could be used to exonerate a person, guilt must be proved beyond a shadow of doubt - established directly and by a preponderance of evidence.

3. Islam consistently teaches us that developing God-consciousness (Taqwa) is the highest virtue. Thus above all else, it relies on developing this inner quality of consciousness in individuals – That is one must guard against what is considered unworthy in the sight of God. Because of this reliance Islamic Law prescribes very few punishments.

In accord with this understanding, Islam prohibits spying on people by intelligence services, or police prying into their affairs. The responsibility of these agencies is to provide safety and security to its people. And only in very exceptional cases, a person should be apprehended or imprisoned.

Principles of Retribution and Personal Responsibility

While upholding the tenet of sacredness of life, Islam in accord with Judeo-Christian tradition allows retribution. The Quran uses the word “Qasas” for retribution which simply means “equality.” Qasas is allowed in cases of first-degree murder, where the killing is proved intentional.

However, the same passage where Qasas is allowed, it also provides the victim’s family with alternative choices: They could instead pardon the perpetrator, and accept a monetary compensation for their loss. The Qur’an says: “But if something of a murderer’s guilt is remitted by his brother this should be adhered to in fairness…” (Al Baqarah 2:178).

The use of the word “brother” suggests consideration of leniency as a general rule. That despite the bitterness towards the murderer, he is still one’s brother as a member of human family. Hence instead of giving in to a vengeful spirit aroused by the occasion, it is better to overcome it by forgiving one’s erring brother. Thus according to Islamic penal system, a case of homicide can be settled by mutual consent of the two parties. And if the heirs of victim exercise this option, a judge cannot insist on carrying out the death sentence.

Likewise, a criminal must be held responsible in compensating for the crime committed by him.

It must be pointed out that Islam strictly upholds the principle of personal responsibility. The Qur’an tells us: “No one carries the burden of another” (Al Anam 6:164). And: “God does not put a burden greater than one can bear. It gets every good that it earns; and it suffers every ill that it earns” (Al Baqarah 2:286). Indeed, our worldly organizations are based on this understanding: We reward good conduct and punish bad conduct.

The overall Islamic system is for the good of humankind (Al Maroof). Therefore, any punishment given must be for the overall good of the human society.

The objective of Islamic penal system is to act as a deterrent.  The punishment works on the psychology of fear - its severity is meant to scare the criminal and others not to ever commit the crime. Simultaneously, conditions are laid down for the evidence that are almost impossible to fulfill. For example, the evidence for fornication requires four witnesses each of whom must have actually witnessed the very act clearly. And if one of the witnesses backs out, the punishment is annulled and the witnesses punished instead. A false witness loses his privilege of serving as a witness forever.

Furthermore, any of a number of exigencies could offset the punishment.

Only after due education and the society adequately carrying out its responsibilities towards its individuals, Islam allows punishment of the habitually guilty - who has been warned several times. It is the responsibility of a society to provide each and every individual with the basic necessities of life such as food, shelter and primary education. Without providing these necessities, it cannot punish its guilty. In all cases where it falls short of its obligations, the punishment is either annulled or greatly mitigated.

Islam is Emphatic on Reformation

Islam came as a mercy to humankind. The Qur’an says: “We sent you not, but as a mercy for all creatures” (Al Anbiya 21:107); Alamin in the verse is often understood as humankind. As such, it aims at bettering the lot of people, and is not meant to punish them.

Islam greatly emphasizes the reformation of an individual. The Arabic word for repenting is Taba/Yatubu, which also means to return. To repent is to be sorry, remorseful for committing a sin or crime and asking God for forgiveness. Simultaneously, it is to renounce returning to sin, and working to reform oneself.

Thus if one commits a sin, all one has to do is open unto God, ask His forgiveness, and make a commitment to reform oneself. Even for the greatest sin, one does not have to confess to anyone else but God. It is all that is required of a person.

God is Tawwab, the One who is Often-Returning, Most Forgiving. As humans, we are liable to err and commit a sin. And may do it again and again, but God is always there every time in His Grace and Infinite Mercy for each and every one of us. We may get disappointed in us, but God is not disappointed from us. He returns again and again to us: He is always forgiving, kind, loving and merciful.

The Lord Almighty tells this to us variously. For example: “Say: O My Servants who have transgressed against their souls! Despair not of the Mercy of God: for God forgives all sins for He is Oft-Forgiving, Most Merciful” (Al Zumar 39:53).

People of Faith to The Rescue

The people of all faiths - Jews and Christians alongside Muslims must be involved in reforming the U.S. prison system. As well as, reforming and rehabilitating its inmate population.

And we must also educate the American public. Our tough on crime attitude has persisted since the 1980s. It accounts for the great length of time people are put into prisons leading to aging prison populations with an increased burden on healthcare and geriatric services.

It is a pity that we have a self-perpetuating corporate industry that is run for profit and it serves the U.S. administration to imprison its citizens.

Our public also needs to be informed of their mixed-up priorities. Slogans such as “Lock them up and throw away the keys”, “Three strikes and you are out” cost tax payers millions of dollars. A prison inmate costs approximately $30,000 per year, and if he/she is sick several-folds more. If an inmate is there for life, it costs a million dollars or more for each of them.

Disgracefully, there are racist overtones to the prison population. Despite the fact that African-American make up only about 12 percent of the national population, they comprise nearly 40 percent of its prisoners.

It is a pity that our public agrees to spend millions of dollars on putting people in prisons in preference to spending on educating them. Obviously, we need to spend more on education - so that thus educated more people are productively involved in building our society, and there are very few committing crimes and sent to prison. The American public must be informed and enlightened about this and all other relevant matters.

As a people of faith we need to collaborate in our efforts to ameliorate the condition of inmates in the prison. There is negligible work on reforming and rehabilitating the prisoners.

As a matter of fact once in prison, an inmate tends to go back into it with a high rate of recidivism. Because when on the outside an inmate cannot meet the expenses, to pay his bills and cope with other conditions of a normal life.  And while in prison he does not have to worry about paying his rent, his utility bills, and other living expenses: All that is paid for him; even for his health. This, while around 40 million Americans don’t have any health care insurance. In fact, an inmate has a better health insurance than most people on the outside, and anytime he gets sick, gets attended to right away by the prison authorities for fear of litigation.

By putting criminals together our prisons have become training grounds for crimes, unless measures are taken to rehabilitate them.

And once an inmate is released, he is left on his own without getting much help in settling him down as a good citizen.

Faiths have unique qualities of getting to the psyche of an individual. And once faith is ingrained there, it can alter it in ways nothing else can. Therefore, people of faith could play a unique role in making a person change for the better - in this case, the incarcerated of its population.

People of faith need to get organized, collaborate and find innovative ways and means for reforming and rehabilitating those confined in prisons as well as those getting released from the prisons.

Notes

1. A good part of this article was presented as a panel discussion at Good Shepherd Christian Church in Tucson, Arizona in 2012. (Note: The author has served as a chaplain with the U.S. Department of Justice from 1995 to 2000).

2. For a detailed discussion of this and other Islamic topics, please refer to Sayyid Abul A’la Mawdudi, Tafhim al-Qur’an, translated and edited by Zafar Ishaq Ansari, The Islamic Foundation, Leicester, United Kingdom, 1995.

3. Statistics and quotes taken from Carey L Biron, “US Prison Population Seeing ‘Unprecedented Increase’, CommonDreams, Inter Press Services, February 5, 2013.

4. Elizabeth Gudrais, The Prison Problem, Harvard Magazine, March-April, 2013. In this article Gudrais, a Harvard graduate on the magazine staff writes on the work of Bruce Western, a sociology professor and other faculty members with prisoners and their recommendations for improving the prison conditions.


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