Judicial Corporal Punishment in the United States? Lessons from Islamic Criminal Law for Curing the Ills of Mass Incarceration

Abstract

At year-end 2012, approximately 2,312,300 individuals were incarcerated in United States jails and prisons nationwide. To visualize this, consider almost all of Chicago, half of Ireland, or the whole of Jamaica bounded on all sides by prison walls. This number, however large, represents only adult individuals who are in physical custody; it does not include juveniles and those adults who are in the system, but not in prison or jail. The entire adult correctional population (consisting of individuals on probation, parole, or in prison or jail) consists of 6.94 million people, equivalent to about 1 in 35 U.S. adults or 2.9 percent of the entire adult population in the United States.Unsurprisingly, these numbers represent the highest incarceration rate in the world. At 716 incarcerated individuals per 100,000 citizens, our total population of prisoners eclipses all others — including China, Russia, and Cuba.

To put it mildly, the cost of housing, feeding, clothing, supervising, providing medical care for, and otherwise maintaining these individuals is not cheap. At the federal level, annual prison budgets have recently exceeded $6.5 billion; and the annual cost-per-inmate ranges from $21,006 for minimum-security offenders to $33,930 for high security offenders. At the state level, annual spending on corrections by the individual states stands near $52 billion in total, the bulk of which goes to expenditures for state prisons. And to further compound the problem, individuals who have entered the incarceration system, served their time, and been released have essentially a coin flip’s chance of entering the system again. The scope of analysis here is limited to policy, not practice. That is, the methods by which judicial corporal punishment are carried out are not intricately probed, except where necessary. Moreover, a full-scale recommendation for overhauling the criminal code and/or sentencing guidelines of a given jurisdiction by implementing judicial corporal punishment is beyond this Article’s scope. Rather, the study seeks to provide taxpayers and policymakers with information about the objective policy behind judicial corporal punishment and how it could help significantly reduce the huge economic and social costs which incarceration levies on American society.

Accordingly, Part II examines the five universal purposes of punishment and offers a working definition of judicial corporal punishment. This follows with a comparative analysis of judicial corporal punishment under the U.S. and Islamic legal systems. Here, the authors conclude that, while judicial corporal punishment has de facto been eliminated in the United States, it is not necessarily forbidden under the Eighth Amendment of the U.S. Constitution. Part III, in turn, examines the drawbacks of judicial corporal punishment as implemented under Islamic criminal law. The authors here suggest that, despite its limitations, judicial corporal punishment as implemented in Islamic criminal law is more effective, less costly, and more compassionate than the status quo of incarceration. Finally, Part IV concludes by discussing some practical aspects to consider in light of the somewhat shocking issues confronted in this Article. No rational person enjoys the thought of inflicting corporal punishment on anyone; the very thought seems repugnant, backward, barbaric, and brutal. However, so long as mass incarceration results in broken families, a diminished workforce, and ever-increasing taxpayer burdens, American society as a whole will suffer under a system that is repugnant on a much broader scale.

Keywords: Islamic Criminal Law, Punishment, Deprivation of Liberty, Deterrence, Judaical Power, Hudud, Rehabilitation