Muslim application of criminal law has often been described as Medieval Draconian laws. The application of capital punishment has been banned by the UN and the ECC.

Punishment in Western penology served three functions: i) Retribution (justification looking to the past - i.e. punishment, revenge); ii) Deterrence (justification looking to the future - i.e. prevention); and iii)Reformation

In The Report of the Departmental Committee on Corporal Punishment in England, 1938, the committee's unanimous opinion was that "corporal punishment was of no value as a deterrent and should be abolished." In 1952, in the USA, Justice Hugo Black wrote: "Retribution is no longer the dominant objective of criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence." In 1972, Justice Thurgood Marshall wrote: "Punishment for the sake of retribution is not permissible under the Eighth Amendment." In the same year, California's capital-punishment law was declared unconstitutional  (23) For some criminologists "reformation" has become synonymous with "cure". The criminal is no longer a "bad man" but a "sick man."(24) A convict needs treatment. He is genuinely ill, perhaps physically, almost certainly mentally, and psychiatrically.

The Abolition of the Death Penalty Act of1965 cancelled capital punishment for murder. The Home Secretary announced on 22 April 1970 that 172 convicted murderers had been released from prison since 1960, most of them having only served nine years or less of their statutory life sentence. Only five served 2 or more years, nine served 6 or less and one completed only 6 months. These are not cases of mistaken ruling which was corrected. These were convicted murderers being let out on the public due to their good behavior in prison. Many of them killed again, only to be sentenced for a few more years.

Western penologists have admitted that the penal system has failed utterly in reforming and rehabilitating criminals. Petty criminals enter the system and exit as well trained hardened criminals. Society ends up paying for the crimes committed against it by being obliged to provide food, clothing and shelter for criminals.

In the Islamic system, punishments are placed in three categories: i) Hudood : Punishments prescribed by God in a revealed text of the Qur'an or Sunnah, the application of which is the right of God (Haqq Allah). 6 offenses: drinking alcohol; theft; armed robbery; illicit sex [homosexual, pedophilia, bestiality]; sexual slander; and apostasy. In a penal context, the punishment is (a) prescribed in the public interest; (b) cannot be lightened or made heavier; and (c) after being reported to the judge it cannot be pardoned by either the judge, political authority, or the victim [Qur'an, (2): 229]. ii) Qisaas: Retaliation. Punishment prescribed in Islamic law for murder and injury wherein an injury of equal severity is inflicted. iii) Ta^rzeer : Discretionary.

During the Ottoman administration of the Arabian peninsula hudood punishments were not applied. In the late 1920's the Saudi regime reintroduced them and the crime rate fell noticeably. The hadd for theft up to 1970 was not implemented more than twice per year. Six months after the introduction of Sharia ^rah in the Sudan, crime decreased by more than 40% despite President Jaffar Numeiri's release of 13,000 prisoners at the time of decreeing Islamic law because they were not sentenced under the Sharia. Since the introduction of Islamic law in Iran, crime has dropped significantly.

Retribution is obvious in hudood punishments from their severity and the prohibition of mediation. And retaliation in qisaas as Allah said (2:179): "In retaliatory punishment there is life for you, o people of understanding, in order that you fear God." Goodheart stated in 1953: "Retribution in punishment is an expression of the community's disapproval of crime, and if this retribution is not given recognition then the disapproval may also disappear..., The element of retribution - vengeance, if you will - does not make punishment cruel and unusual, it makes punishment intelligible. Leo Page wrote: "Law exists for the protection of the community. It is not necessary to show that capital punishment is an absolute preventative of murder, or even that it is the only deterrent. If it can be shown that it is more effective as a deterrent than any other punishment, then I shall be satisfied that it should be retained. To hold otherwise is surely to forget the innocent victims of murder in the interest of their murderers. And I have no doubt at all that fear of the gallows is the most powerful of all deterrents."27

MURDER

In the West, homicide is a crime in which the state must intervene and apply punishment. Consequently, punishment for homicide in the West became arbitrary and lacking any uniformity. Studies in the 60s showed that black Americans were sentenced to death for crimes which white Americans were only "doing time." In Islam, homicide is considered a civil wrong (tort). It is up to those who suffered the loss (the victim's relatives) to decide on punishment or pardon. Qisaas may be private justice or personal revenge either by i) execution; ii) deeyah; or iii) complete pardon (2: 178). However, even after execution has been ordered by the court remission is possible. This principle is uniform and leaves the right to pardon in the hands of those harmed.

Crimes of passion will not be eliminated by the death penalty. Public execution discourages premeditated murder. Where a person knows that he or she will only have to face life imprisonment (6-9years) for murder, if caught, they will be more willing to take the chance. But, where the consequence is possible death, they will think twice or thrice before going ahead with a murder. In the West, the execution of murderers takes place in prisons it is only viewed by a few members of the press, prison officials and the family of the murderer and the murdered. Consequently, for the society at large it is only a statistic. The execution has no personal impact on the individual members of society. In the Muslim state large segments of the society are invited to view the execution so they will convey it to the rest of the society.

THEFT

The media often refers the "hacking off" of the thief's hand in order to portray the most gruesome picture possible of the implementation of Islamic criminal law.

The Qur'an prescribes amputation in Chapter 5: 38 "As for thieves, both male and female, cut off their hands as recompense for their deeds and an exemplary punishment from Allah..." However, there are conditions under which this law is to be applied.

The law of amputation is not applied under the following circumstances:

• i) During times of famine or starvation. If a person steals food to prevent starvation, his hand will not be amputated. If he steals property because of the opportunity in a time of natural disaster, he is a criminal whose hand should be removed.
• ii) If a worker stole from a boss who had withheld his pay. Instead the boss would be penalized as long as the amount stolen was not more than was owed in back wages.
• iii) If the property taken was public property. For example, rugs or fittings in a mosque, or seats from public transport.
• iv) If the value of the property was less than 10 dirhams.
• v) If the item stolen was not in its proper place (i.e., it was accidentally left somewhere and thus became temptation). The professional pickpocket or burglar have made theft a way of life.

The right hand is surgically removed at the wrist and not hacked off by a meat cleaver or a chain saw, as media reports seem to imply. The left foot at the ankle is removed on the second occasion and on the third occasion he may be executed as incorrigible. This is law is implemented publicly for the purpose of deterrence.

23 Punishment in Islamic Law, Muhammad Saeed El Awa, p. 87.
²⁴ Crime and the Penal System, Howard Jones, 3¹¹ Ed., London, 1965, p. 144.
²⁵ Ibid., p. 88.
²⁶ English Law and the Moral Law, A.L. Goodheart, London, 1953, p. 93.
²⁷ Crime and the Community, Leo Page, London, 1937, p. 132.