I have been watching at a distance as the State of Georgia prepared to execute Troy Davis. I tweeted away in astonishment, shock and revulsion at the failure of our justice system.
Officer MacPhail, a off duty police officer serving as a security guard, was murdered. My condolences to the family for having to go through all of this. The roller coaster was a shared experience, it was not a single person affair, the family of Troy Davis experienced what the MacPhails did, except they will not get JUSTICE for the death of their loved one.
When I say the Davis family will not get justice, I feel that the MacPhail family will not either. To the MacPhail’s justice was served with the execution of Troy Davis, but what if the doubt of his guilt is substantial enough, can the MacPhail’s live with the fact that the real murderer is out there, or worse, that the wrong man was executed, killed for a crime that he didn’t commit? What of the MacPhails sense of justice?
Thats the crux of the capital punishment debate, at least for me. Amnesty advocates for the abolishment of the death penalty and describe it as a “cruel and unusual punishment” that has been abolished by other civilized societies, in Western Europe primarily. They state that America’s insistence to apply the death penalty creates problems in seeking justice because countries refuse to extradite criminals to the US knowing that we are a capital punishment society. There are other arguments posed for abolishing the death penalty, but I think its important to be clear here- I am not opposed to the death penalty. While I am writing this from a Muslim perspective, I will also clearly state that there is a trend (growing?) within the Muslim religious scholars to abolish (?) the application of the death penalty. However, Islam itself recognizes and legitimizes capital punishment, no arguing that.
This post started with a Troy Davis tweet that spun into a dive of background research and reflection. Reading Islamic Legal Philosophy, by M. Khalid Masud gave some great insight on the policy and religious precepts of Sharia and its application. (You can read more on my old blogpost on Khalid Masud’s book)
The following is important to the conversation on Capital Punishment and Sharia- the “law” in the Islamic conception existed above and outside of the state, in fact the purpose of the state was to uphold, implement and act out the “law”. The concept of law was different then secular conception, because in Islam the law was Divine, God given, not so different then other Semetic conceptions of the law. Secular law on the other hand derives from the Greek concept of “natural law” and is focused on finding what is “good for society” because the Greeks derived the idea of finding law from internal human process, so common law is largely based on this assertion of “searching for the good of society.” This is critical because the law in a semetic sense does not work to be the “last judgement” rather that judgement is left to God and humans only apply that which is closest to Divine punishment in the mortal world. I constructed this narrowly to apply toward capital punishment, but the analysis above is much more broader and Masud does a better job at introducing it then I can, so I encourage you to find a copy of his book and read for yourself.
Both legal systems, however, intend to protect the rights individuals, balanced with the that of the society. Both work on creating public policy that orders and maintains societal norms and try’s to impose “responsibility” and not just “protect freedoms”. But a significant difference at this point is that the Sharia seems to focus more on “responsibility”, it seeks to prioritize aspect in society. The rights of being a citizen, a businessman, a woman are corresponding- or limited- by the duties or responsibilities you are held to. Whereas, here in America, we emphasize “freedoms”- but then we severely limit those freedoms on a case by case basis that establishes a precedence. In light of the rights and responsibility framework, the sharia is explicit about capital punishment.
Beginning with the Quran, there is clearly a sanction for capital punishment, “…take no life, which God has made sacred, except by way of justice and law. Thus you are commanded, so you may learn wisdom…” instructs Chapter 6, verse 151. But Islam’s approach to capital punishment, or the criminal legal system, is significantly different then the criminal legal doctrine that permeates common law legal systems (the US, ours, etc). For instance the criminal system here is that the doctrines of evidence, sentencing and substantive doctrines are all independent of one another. In Islamic criminal law all these doctrines are intricately intertwined with one another and they are applied based on the type of punishment that is sought. (I am not entirely clear on procedural process, for example does the state, like the DA here, bring charges for criminal offenses, because in reading the punishments the victims demand capital punishment.)
When approaching from a punishment application driving the doctrinal application, in Sharia, the capital punishment is divided into two branches Intentional Murder and “Fasadh fil-ardh” (spreading mischief in the land: rape, terrorism, espionage etc). I am going to focus on the intentional murder, but the punishment structure applies for both branches, and consists of three types of punishment with varying degrees of standards to meet sentencing under those punishments: Hudud (the media worthy or buzz sentencing), which is basically crimes against God and these punishments are fixed in the Quran and Sunnah and cannot be changed; Qisas (or retaliatory punishment) which involves more of the intentional murder cases; and finally Tazirat or discretionary punishments, which is most analogous to common law application of sentencing. A murder can fall under all three or one of these punishment schemes, however to pursue a Hudud or Qisas sentencing the bar for consideration is set significantly higher.
An intentional murder is defined as a “killer intends to kill and uses some means to kill or lead to the killing” of the victim. Like common law, Shari’a works on the notion of intent and sees homicide in varying degrees (1st degree, etc). A murder can be “intentional” or it can be non-intentional murder, or it can be accidental murder. Whats interesting with the Shari’a is that it combines our criminal and torts (a civil wrong for which the law provides a remedy) into one system, but it gives the dead victims heirs the opportunity to pursue state sanctioned punishment (get to this a bit later on). But for an intentional murder, the most used route is Qisas or retaliatory punishment, which in a murder conviction case would be execution. Next component is “some means to kill” which is interpreted in a way to evaluate whether a “deadly weapon was used” or “the action was a non-deadly action that resulted in death”, this evaluation can lead to various degrees of punishment structure under which the murder will fall.
The policy behind this is clear, society can not stand by idly when a life is taken, both legal structures approach it from that policy perspective. But whats interesting is the Quran states an emphasis on preserving life, so the doctrinal application of Qisas creates many mechanisms to emphasize the preservation of life. The concept of Qisas stems from “life for a life” which is a familiar Biblical standard shared by the Sharia. There are two options in Qisas, the first “life for a life” or “retaliation for something less then life.” Qisas is the most severe form of retribution a society can act out on another individual. Murder is seen in such a severe light because it tears at the fabric of society, thus it serves two purposes, establishment of justice and the prevention of arbitrary execution. Qisas gives to the victims heirs the opportunity to seek out divine punishment on earth.
In Sharia, the victims family stipulates the punishment they seek and the sentencing they see that is due. Under Qisas the sentencing offers three paths: 1. to execute the criminal, 2. to seek out monetary compensation or 3. to forgive the criminal. Once the Qisas standard is found, there can be no appealing to state authority, the appeal lies solely in the hands of the family of the victim. The family, or relative, is defined as “consanguineous relatives of the murdered person.”
Unlike the criminal process for murder in our system, Islam constructs a greater restriction on evidence that is brought into intentional murder trials by creating exhaustive definitions of categories of evidence in order to uphold the punishment. Murder conviction under Qisas requires 2 witness that are pious males (don’t ask me about male/female inequality in this) who have witnessed the incident, they can provide explicit detail (where the fatl blow was done, when, how, with what, under what circumstances, etc) and the witnesses testimony must not contradict each others. If any of these elements are not met, then Qisas sentencing can not be sustained but a lower degree of punishment under Tazirat can be pursued.
So breaking down the elements- 2 pious males- piety complicates the requirements because the court has to go out and investigate the various standards that create “piety” of the witnesses. Explicit detail requires significant amount of detail and the ability to relate that detail in a way that meets the courts requirements under Qisas. Worse to the threshold for Qisas sentencing is that 2 males must have witnessed and met the above standards in order for the court to consider Qisas sentencing. A confession by the murderer negates these requirements and it alone will stand as meeting the threshold for Qisas sentencing. These elements place a heavy burden on carrying out Qisas, the idea of exception in the Quran under “the law and justice” is not so easily applicable, and suggests the emphasis on “the sacredness of life.”
To further bolster this opinion, the confession standard itself is significantly different then common law, because it expands the threshold by shifting the burden further away from the alleged murderer. First a confession under police interrogation must be given voluntarily, much like our system, for it to be held up in court. However, the confessor can withdraw the confession at any point up until the execution is carried out and depending not he standards that were met Qisas sentencing cannot be carried out. Second, this withdrawal applies for all forms of punishment, even Hudud (or crimes against God). Judges were expected to push for this right during the proceedings, findings and up until the carrying out of Qisas.
Further, the sacredness of life in Islam is suggested by the fact that when the relatives have disagreement on Qisas, like one member wants to forgive, three want to seek compensation but the mother and father want to seek the execution, the courts when finding Qisas will take the more lenient position and apply it, which would be forgiving the murderer by sparing his life, but the Judge might pursue a discretionary punishment if the judge views the murder so heinous as to set an example of acceptable and unacceptable behavior (i.e. life imprisonment).
The biggest consideration though, under Qisas, is the concept of “Shubha”, or semblance of doubt will result in voiding Qisas and Hudud punishment that applies the death penalty. Dr. Hamdy Murad explains “doubt” as “suspicion” saying suspicion “means the presence of deficiency in absolute certainty. If suspicion arises, the punishment set for a certain offence must be prevented and milder penalties should be sought. This is usually left to the discretion of the just judiciary.” This arises from the statement of Prophet Mohammed “Avert punishments if suspicions arise”. The Sharia is based on fairness, and under suspicion arising, there is no justice or fairness that brings about the application of a death penalty. This goes back to the pursuit of a discretionary punishment structure of punishment, all in order to avoid injustice.
I honestly think under a legal system that works to preserve life, Troy Davis, would not be executed. Our legal system does value life: under defense of property, your property rights do not outweigh the preservation of life of the person trespassing or stealing something from you. The battle over abortion places the “preservation of life” at the center in opposition to the right of the woman to choose what to do with her body. I think in the end of Troy Davis saga, which might be the impetus to energize the abolition movement in the US, our legal system failed. The 27 word decision by the Supreme Court of the United States has the underlying idea that the federal court did not want to encroach on state sovereignty by preventing Georgia from executing him, given that Georgia had gone through the legal process and still found sufficient evidence to carry out the death warrant for Troy Davis. The irony on Wednesday in execution story was Texas execution of Lawrence Brewer. Brewer was a white supremacist who dragged to death James Byrd, a black man. Members of Byrds family, including his son, (but not everyone) sought mercy for Brewer, yet he was executed.
(Dr. Hamdy Murad goes on to argue in The Death Penalty in the Arab World seminar held in Amman, Jordan in 2007, that applying the death penalty today, under Islam and secular laws, does not meet the standards of Divine Justice because Muslim societies lack the religious legal maturity that has the authority to impose Hudud and Qisas sentencing.)