JUDICIAL CORPORAL PUNISHMENT IN THE UNITED STATES?! LESSONS FROM ISLAMIC CRIMINAL LAW FOR CURING THE ILLS OF MASS INCARCERATION

Abstract

At year-end 2012, the entire adult correctional population in the U.S. (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. Unsurprisingly, these numbers represent the highest incarceration rate in the world. In addition to these high numbers, the U.S. system of incarceration is both: 1) expensive (due to the large state and federal expenditures required); and 2) lacking in efficacy. The purpose of this article, therefore, is to provide taxpayers and policymakers with information about the objective policy behind judicial corporal punish- ment and how it could help to significantly reduce the huge economic and social costs which incarceration as a preferred form of criminal punishment has levied on our society. This will be achieved in four Parts. Part II examines the five universal purposes of punishment and offers a working definition of judicial corporal punishment. Part II also provides a comparative analysis of judicial corporal punishment in the U.S. and Islamic legal systems. Next, Part III begins the authors’ independent subjective analysis, first conceding the draw- backs of judicial corporal punishment as implemented in Islamic criminal law, then coming to the conclusion that, despite the drawbacks, judicial corporal punishment as implemented in Islamic criminal law is superior to the status quo of incarceration in the U.S. Part III’s conclusion will be supported by three main arguments showing that judicial corporal punishment as implemented in Islamic criminal law is more effective, less costly, and more compassionate than the status quo of incarceration.