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January 27, 2008

Are victims' rights at sentencing a distinctively Muslim concern?

Regular readers know that I find fascinating the connections between religion and sentencing, and thus I read with great interest a new article from renown federal judge Jack Weinstein in the Touro Law Review, titled "Does Religion Have a Role in Criminal Sentencing?". There are many interesting facets of this article (which I cannot find free on-line), but these passages really caught my attention:

The effect of religion on sentencing in the United States has been subtle, discreet, and indirect.... Religiously-based attitudes do influence the criminal law in our diverse society.  There is a constant struggle in our country to balance secularism and sectarianism.... 

This year I have three female law clerks. One is orthodox Jewish, one is Christian and one is Muslim.  I put to them the question: Can you briefly describe the effect of the Old Testament, the New Testament, and the Koran, respectively, on your view of sentencing?....

My Muslim clerk noted: Sentencing under Islamic law provides a greater role to the victim than mere exhortation.  For example, the sentence of death typically imposed for murder may be commuted if the victim's family agrees to accept a payment of money (known in Arabic as "diyah") in lieu of the murderer's life. This structure is typical of Islamic punishment: a strict sentence is imposed, which victims alone have the power to soften.

I agree with the underlying premise, which is that the most legitimate and enduring source of leniency is forgiveness by those who have been wronged. Like judges in the United States' system, victims are guided in their sentencing role by certain legislative principles set out in the Qur'an, which urge understanding and forbearance.  For example, the Qur'an states that the recompense of an evil deed is the like thereof, but whoever forgives and amends shall have his reward from God...

Interestingly, the Muslim approach represents the newest change in American sentencing. Under recent amendments to federal law, victims have a right to be heard during sentencing and restitution for economic losses must be provided. In death penalty cases the families of victims testify on the issue of capital punishment.

Before reading this article, I did not connect of the American victims' rights movement with Islamic theology.  Nevertheless, given that Judeo-Christian punishment philosophies tend to emphasize retribution (in the Old Testament) and redemption/rehabilitation (in the New Testament), concentrated concerns for crime victims' rights  may have a distinctively Muslin resonance. 

Who would of thought that Professor Paul Cassell left the federal bench (details here and here) to pursue legal interests that find distinct expression in the Qur'an?

January 27, 2008 at 01:35 PM | Permalink


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"For example, the sentence of death typically imposed for murder may be commuted if the victim's family agrees to accept a payment of money (known in Arabic as "diyah") in lieu of the murderer's life."

I'm unconvinced this is a uniqely Muslim point of view in that it is driven by a theory of criminal justice that the prosecution of crimes should be persued by the victims. I don't see any particular reason to distinguish this from the payment of bot or wergeld in the old anglo-saxon laws. For better or worse (I believe for better), enforcement of criminal justice in Western societies has been relegated largely to the state.

You can file this under everything old is new again. Though I would note there are awfully good reasons the English moved away from this system. Not the least becuase it tends to serve the wealthy, private prosecution requires a knowledge of the legal system or access to a lawyer both of which coorelate with wealth. But more significant for the actual movement away from the private prosecution of crimes is it tends to leave crimes unpunished, which society determines ought to be punished. Some may argue that leaves the question whether society ought to reconsider those crimes which it punishes, but I doubt anyone considers an veto over prosecution by a victim of domestic violence a good thing.

Of course no one argues for this. My point is between the two extremes, one a system of private prosecution and one of public prosection the better mean will be closer to one of public prosection rather than private.

Posted by: nk | Jan 28, 2008 11:42:09 AM

There is nothing uniquely Muslim about it. If I recall correctly, Mulcts, under early Icelandic law were imposed w/ the consent of the survivors.

Whatever the case, I believe that most societies go though various phases of criminal justice regardless of whether they claim to be Christian, Muslim, Jewish, etc. The result is that anyone can pretty much rely on either 1) the practice at SOME time; or 2) a some religious secondary source to justify in religious terms some mode of criminal “justice.”

Posted by: S.cotus | Jan 28, 2008 12:18:51 PM

[LS grad, non-practicing] I've been trying to find where our Constitution forbade private prosecution of federal crimes, and have been coming up bupkis. On the one hand, the federal government insists that criminal prosecution is entirely their bailiwick:

Article II, Section 3 of the Constitution provides that "(The President" shall take care that the laws (shall) be faithfully executed." The prerogative of enforcing the criminal law was vested by the Constitution, therefore, not in the courts nor in private citizens, but squarely in the executive arm of the goverment.
*Moses v. Kenedy*, 219 F. Supp. 762, 764 (D.D.C. 1963), *aff'd. sub. nom. Moses v. Katzenbach*, 342 F.2d 931 (D.C. Cir. 1965).

Yet, both the constitutions of New York and Pennsylvania contained precisely the same language, and in Philadelphia in particular, private prosecution was a game everybody and his brother was playing. Methinks that the courts have been writing law again, as opposed to interpreting it fairly. Your thoughts?

Posted by: Randy King | Feb 12, 2008 3:17:54 PM

Randy, See the website of http://en.wikipedia.org/wiki
/Prosecutorial_misconduct and the "Abuses of discretion" paragraph therein of: "Exclusion of private criminal prosecutions, sometimes needed in public corruption cases." Yours truly, JosephSHaas at hotmail dot com, Private Prosecutor by 129NH684(1987), and by 148NH259(2002), @ p.261 for fine-only convictions.

Posted by: Joseph S. Haas | Oct 26, 2008 6:58:01 PM

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