CHAPTER II

REVIEW OF RELATED LITERATURE AND STUDIES

Related Literature

Measuring sentiment on the death penalty is not as easy a task as it might at first

appear. When opinion polls ask respondents whether they support the death penalty, often no

alternative punishments are given, and respondents are left to themselves to ponder what

might happen if a particular inmate were not executed. Often respondents erroneously believe

that absent execution, offenders will be released to the community after serving a short prison

sentence. Even the most ardent death penalty abolitionists might support capital punishment

if the alternative was to have dangerous murderers quickly released from prison. When

respondents are asked how they feel about the death penalty given an alternative of life

without parole, support decreases significantly. In 1991, Gallup found that 76% of Americans

supported the death penalty, but that support would drop to 53% if life imprisonment without

parole were available as an alternative. (The Journal of Criminal Law & Criminology by

MICHAEL L. RADELET, RONALD L. AKERS)

Capital punishment, also referred to as the death penalty, has long been a feature of

human society and has been used in the United States since the colonial era. Crimes

punishable by death are called capital offenses. Under US constitutional law, states have the

right to apply their own criminal statutes including capital punishment. The death penalty

remains a controversial political and legal issue in the United States. Supporters of capital

punishment argue that it deters crime and provides ultimate justice for crime victims,

particularly murder victims. Opponents counter that it is an immoral and costly practice that

is particularly vulnerable to racial bias. It also carries the risk of carrying out a wrongful

14
execution. As of March 2021, the death penalty had been abolished in twenty-three US states

and the District of Columbia. Governors had placed moratoriums on the death penalty in an

additional three states. (Opposing Viewpoints Online Collection, Gale, 2021.)

Capital punishment is not practiced by a majority of the world's states. Anti-capital

punishment domestic policies have led to an international law of human rights that

emphatically prohibits cruel and inhuman punishment. International concern for the abolition

of capital punishment has prompted Islamic states that still endorse and practice the death

penalty to respond with equally compelling concerns based on the tenets of Islamic law.

Professor William A. Schabas suggests that Islamic states view capital punishment according

to the principles embodied in the Koran. Islamic law functions on the belief that all people

have a right to life unless the administration of Islamic law determines otherwise. Professor

Schabas emphasizes that capital punishment exists in the domestic law of all Islamic states,

but the ways by which these states employ capital punishment are varied and inconsistent.

Although Professor Schabas acknowledges that Islamic states correctly argue that capital

punishment is an element of Islamic law, he maintains that Islamic states do not recognize the

more limited role of the death penalty articulated by the Islamic religion. (ISLAM AND

THE DEATH PENALTY by William A. Schabas')

The death penalty in Islam is not only treated for the loss of other people’s lives, but

other acts can be subject to the same punishment, including adultery muhson, security

disturbances (In the Al-Qur’an it is said to cause damage to the earth. It is stated in Surah al -

Maidah: 33-34), rebellion, and riddah. Considering that this issue is closely related to human

dignity, it is even clear that the life of someone who is about to be executed is clear. This is

more so at this time when the demand for recognition and respect for human rights is very

15
prominent as a result of the emergence of democratization and globalization. Criminal issues

are becoming increasingly urgent to talk about and people are starting to see criminals as the

prima donna in conversation.

The application of the death penalty through an approach to religious values (Islam)

requires its political policy. We all know that the relationship between law and politics is very

closely related. There are three models of the relationship between the two, sometimes the

law is the determinant of politics or vice versa, politics is more determined than law and both

of them between law and politics are not superior because they both influence each other.

(Indonesian Journal of Advocacy and Leg0al Services, Contribution of Islamic Law

Concerning the Death Penalty to the Renewal of Indonesian Criminal Law by M.

Muhyidin, Y. P. Adhi, & T. Triyono.)

Proponents of Capital Punishment argue that the first responsibility of the state is to

protect its law abiding citizens. Capital Punishment is the only penalty appropriate for

heinous forms of crime such as first degree murder. Retentionists believe the death penalty is

an effective deterrent; simply the fear of being sentenced to death may prevent a death. . (A

REVIEW OF THE LITERATURE ON CAPITAL PUNISHMENT by Kevin Bryan

Shea Intergovernmental Researcher)

16
Section 1 of Chapter 488 of the 1979 Massachusetts Acts and Resolves states:

Section 1: It is hereby declared that the value of capital punishment as

a deterrent for crime is a complex factual issue the resolution of which

properly rests with the General Court, which has evaluated the results of

statistical studies in the terms of the local conditions with a flexibility of

approach not available to the courts, and that the General Court has so found

and defined those crimes and those criminals for which capital punishment is

most probably an effective deterrent. It is hereby further declared that the

value of capital punishment as retribution, although unappealing to many, is

an expression of society's moral outrage at the commission of particularly

heinous crimes and that capital punishment for the crime of murder cannot be

viewed as invariably disproportionate to the severity of that crime. It is hereby

further declared that in the past nine years the Congress and over thirty-five

states have enacted new death penalty statutes by legislative measures adopted

by the people's chosen representative. It is hereby further declared that the

ability of the people of the Commonwealth to express their preference through

their duly elected representatives must not be shut off by the intervention of

the judicial department on the basis of a constitutional test intertwined with an

assessment of contemporary standards and that the judgment of the General

Court weighs heavily in ascertaining such standards in this Commonwealth

On January 31, 1982, President Reagan stated the following in support of

capital punishment:

17
 “I support the right of States and the Federal Government to impose

Capital Punishment. It is a serious and difficult decision for government to

take a person's life, and that decision must not be made unless the courts are

convinced beyond any reasonable doubt that the defendant is guilty of a most

grievous cr ime . However, I believe that the death penalty is justified both as

fair retribution for the most serious crimes, and as a deterrent to crime.

Though we must fully uphold the rights of criminal defendants, we must never

forget that our main charge is to protect the lives of potential victims. The

ability of State and Federal courts to impose capital punishment is a necessary

part of that protection.”

An Egyptian court in the governorate of Minya imposed 1,212 death sentences in

March and April of 2016, after two trials arising from attacks on police stations in 2013 that

left at least two police officers dead. After receiving the Grand Mufti’s opinion, the judge

approved 220 of those death sentences. Another Egyptian criminal court handed down

provisional death sentences against 188 defendants on December 2, 2014, the third case of

such mass sentencing that year. During the last three years, more than ninety persons were

executed in Egypt. Furthermore, statistics show that there are more than 1,700 people who

have been sentenced to death in the last ten years. There is an unmistakable relationship

between the political crisis and the sharp increase in courts’ use of capital punishment

following several mass trials marred by grossly unfair procedures, with the number of death

sentences jumping from 109 in 2013 to at least 509 in 2014. (REFORMING THE DEATH

PENALTY IN EGYPT; AN ISLAMIC LAW PERSPECTIVE by GABER MOHAMED,

December 2017)

18
Related Studies

In states that still enforce capital punishment, lethal injection is the primary method of

carrying out executions. Though their use is rare, secondary execution methods permitted by

individual state laws include electrocution, gas inhalation, hanging, and firing squad. Only

three people in the United States have been executed by hanging since 1965, and only four

people have faced a firing squad since 1960. For federal offenses, the government uses the

methods of execution authorized by the state in which the court imposes the punishment. In

cases handled in states that have abolished capital punishment, the federal judge can

designate a death-penalty state to carry out the execution. Several nonprofit organizations

work to end the use of capital punishment. The National Coalition to Abolish the Death

Penalty, the nation's oldest anti–death penalty nonprofit organization, was founded in 1976

and focuses on ending the practice through mass organization, providing legal assistance, and

educating people about the death penalty. The Innocence Project, founded in 1992, focuses

on providing legal services and DNA testing with the purpose of winning exoneration for

wrongfully convicted prisoners. Exoneration occurs when a person's conviction is overturned.

Between 1973 and 2020, 173 inmates on death row in the United States were exonerated.

(Capital Punishment." Opposing Viewpoints Online Collection, Gale, 2021)

While most of the free world has abolished the death penalty, many of the states

within the U.S. Continue to use capital punishment in their criminal justice systems. In 1972,

the United States Supreme Court suspended the imposition of the death penalty, finding it

unconstitutional because it was imposed disproportionately on minorities and the poor. The

19
ban was brief. The Court approved new statutes in 1976, and government-sponsored killings

resumed.

According to the Death Penalty Information Center, the most common method of

execution among states with the death penalty is lethal injection, which is authorized by 32

states, as well as the U.S. Military and the U.S. Government. Smaller numbers of states

continue to use methods such as electrocution, gas chambers, hanging, and even firing

squads.

The death penalty debate is a heated one in this country today. Many proponents of

the death penalty argue that it deters criminals from killing. However, research does not

support the idea that the possibility of receiving the death penalty deters criminals from

committing murder. In fact, studies by the Death Penalty Information Center show that

murder rates tend to be higher in the South (where the imposition of the death penalty is the

highest) compared to the Northeast United States (where the death penalty is less commonly

applied). (Death Penalty Issues, Relevant Cases: Reggie Cole, Grace and Matthew

Huang)

In 2012, Sudan sentenced Intisar Sharif Abdalla, a mother of three, to death by

stoning, for allegedly having committed adultery. Abdalla did not have access to a lawyer,

was forced to confess after having been beaten by her brother and was not provided with an

interpreter during the proceedings, which were conducted in Arabic (not her native language).

Perhaps most alarmingly, her co-accused was not charged, on the basis that he denied the

allegation against him. Such a case is clearly in breach of international standards for

imposition of the death penalty but, I would argue, it is also in breach of sharia law.

Sharia law provides a holistic set of rules governing all aspects of life. The principal

sources of sharia law are the Quran and Sunnah (practices and traditions of the Prophet

20
Mohammad (pbuh)). There are two secondary sources of sharia law known

as Ijma’a (consensus of Muslim scholars) and Qiyas (reasoning by legal analogy).

It is notable that there is no homogenous application of sharia law and the way in

which Muslim states deploy the use of the death penalty can vary quite significantly.

Arguably, it is better described as manifestations of the will of Muslim states rooted in each

country’s idiosyncratic policies and traditional beliefs.

There are 33 offences warranting the death penalty in Pakistan, including blasphemy,

sabotage of the railway system and drug smuggling. In Saudi Arabia, crimes such as sorcery

and witchcraft are punishable by death, and in Iran, there are 24 reported capital crimes,

which include espionage, economic crimes (if they amount to ‘corruption on earth’) and

publishing pornography.

The evidence suggests that the use of the death penalty disproportionately targets

religious minorities in some Muslim countries and is often used as a tool to further political

agendas. For example, in April 2019, 14 protesters from the Shi’a minority were executed in

Saudi Arabia, after a grossly unfair trial, for their alleged participation in anti-government

demonstrations between 2011 and 2012. In 2016, Iran executed 25 Sunni men convicted of

“enmity against God”, and in 2017, Pakistan sentenced 3 Ahmadi men to death for

blasphemy because they tore down anti-Ahmadi posters, which the prosecution argued had

such religious significance that tearing them down was equal to insulting the Prophet (pbuh).

Death sentences are often imposed and implemented in flagrant violation of an individual’s

right to a fair trial, which is antithetical to sharia law. In September 2020, Iran executed 27-

year-old Navid Afkari, a professional wrestler. He was accused of murdering a security guard

during anti-government protests in 2018. Amnesty International reported Afkari was:

21
 “Subjected to a shocking catalogue of human rights violations and crimes,

including enforced disappearance; torture and other ill-treatment, leading to forced

“confessions”; and a denial of access to a lawyer and other fair trial guarantees.”

Afkari maintained his innocence and pleaded to the judiciary to investigate his

complaints of forced confession and torture. His pleas were ignored and his execution carried

out in secret, without his lawyer and/or family being informed and without affording him his

right to a fair trial and due process. (An introduction to sharia law and the death penalty

by, Naima Asif, Barrister, Pump Court Chambers, Jan 26, 2021)

In 2007, the Indonesian Constitutional Court, recognized that the death penalty is still

valid and constitutional under Indonesian law. In the ‘Considerations’ section of decision,

however, provided guidance as to when capital punishment should be applied such that:

A. The death penalty should no longer been seen as a primary punishment but only as a

specific, alternative punishment;

B. The death penalty should be imposed with a ten-year probation period, after which

the sentence should be commuted to imprisonment in cases of commendable

behavior;

C. The death penalty may not be imposed on those who have not yet reached adulthood;

and

D. The death penalty is to be suspended in cases of convicted pregnant women (until

they have given birth) or those with mental illness (until they have recovered). I

regret that as Chief Justice of the Court at that time, I could not persuade my fellow

justices to go further. (Islam, Democracy and the Future of the Death Penalty

Professor Dr. Jimly Asshiddiqie, SH, August. 11, 2015)

22
 As a general rule, if the religious sources such as the Quran and hadith justify the

death penalty in theory that gives us no answer about whether the death penalty is justified as

applied in Islamic nations today, Islamic criminal justice systems apply laws of 14 centuries

ago equally today because they are of divine origin. The fact is many Islamic punishments

were pre-Islamic and, indeed, were promulgated by the Prophet Muhammad (e.g., stoning,

retaliation laws.)

The more the situation of the Muslim community changed, the more the revelation

altered to match the community’s needs and to coordinate with the contemporary standards of

societies (Aslan, 2004). Thus, personal dignity and humanity are highly valued in current

societies. Muslim jurists should continue adapting the tools to prohibit punishments that

violate these values and that would have to be deemed problematic and in contrast to the

idealism embodied in the ban on cruel and unusual punishment. Furthermore, in contrast to

punishment in accord with norms of human rights, particular countries may treat people in

arbitrary ways and severely curtail their freedom. This is in spite of, rather than in keeping

with, religious law, because religions have the ability to adapt themselves with ideas.

Therefore, Islamic law needs to be updated and meet the demands of modern times. The

better course is to steer clear of such obstacles and focus on the purpose of the ride: that is,

providing a humane and civilized criminal justice system the way religions originally

intended. (DEATH PENALTY IN SHARIA LAW by Sanaz Alasti and Eric Bronson,

Dec. 20, 2017)

23