Shari'ah and Choice: What the United States Should Learn from Islamic Law About the Role of Victims' Families in Death Penalty Cases

Abstract

Under classical Islamic law, homicide is considered an individual wrong. As such, the family members of the victim have the right to choose the punishment that is to be imposed. They may choose to have the offender put to death. Or they may choose to collect a fine from the convicted person and his or her family. They may even choose to forgive the convicted person without exacting any fine. This last option is encouraged and based on Qur’anicc text. In the United States, however, courts do not allow the family members of a murder victim to even voice an opinion regarding the sentence to be imposed. Courts consider this testimony irrelevant - even when the victims do not want the death penalty to be imposed. This refusal to allow the family members of the victims to recommend a particular sentence is not simply the result of logical application of the rules of evidence, relevance, state sentencing statutes, or Supreme Court precedent (which is not clear when the victims want to express their preference against execution). Rather, it is the consequence of power struggles in Mediaeval England that led to the current distinction between tort and crime. Notwithstanding the designation of homicide as a crime against the state in the West - and its theoretical justifications - it is the family members of the victims who are the ones most affected by a murder. The author of this Article argues that the true victims should at the very least be allowed to voice an opinion on sentencing in a capital case, particularly when they wish to advocate mercy; for example, that the perpetrator of the crime should not be put to death. Redefining the scope of permissible victim impact testimony in state sentencing statutes to allow the victims to voice their opinions on the proper sentence to be imposed would demonstrate respect to those most personally affected by the grief and horror of murder - the family members of the victims. This approach would also be in accordance with the goals of the victims’ rights movement, the restorative justice movement, and classical Islamic jurisprudence-from which we can learn a great deal.