LETTING TIME SERVE YOU:  BOOT CAMPS AND ALTERNATIVE SENTENCING FOR FEMALE OFFENDERS


JUDICIAL CORPORAL PUNISHMENT IN THE 
UNITED STATES? LESSONS FROM ISLAMIC 

CRIMINAL LAW FOR CURING THE ILLS OF MASS 
INCARCERATION 

Mohamed A. Arafa∗ and Jonathan G. Burns∗∗ 

“God makes some hearts so soft that they are softer than milk, and He 
makes others even harder than stones.”1 

“Prison is a mystery to all but the millions of people forced to live and 
work in this gigantic government-run detention system. And as long as we 
don’t look at what happens on the inside, as long as we refuse to consider 
alternatives, nothing will change.”2 

PART I: INTRODUCTION 

At year-end 2012, approximately 2,312,300 individuals were 
incarcerated in United States jails and prisons nationwide.3 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 

∗ Assistant Professor of Criminal Law and Criminal Justice, Alexandria University Faculty of Law 
(Egypt); Adjunct Professor of Islamic Law, Indiana University Robert H. McKinney School of Law 
(United States). S.J.D., Indiana University Robert H. McKinney School of Law (2013); LL.M., 
University of Connecticut School of Law (2008); LL.B., Alexandria University School of Law 
(2006). Professor ‘Arafa is a Visiting Professor of Business Law at the Arab Academy for Science, 
Technology, and Maritime Transport. Moreover, Professor ‘Arafa served as an Associate Attorney 
and Executive Attorney Assistant at ‘Arafa Law Firm (2007). For comments or questions please 
contact the author at marafa@iupui.edu or arafadr_mohamed@yahoo.com. 
∗∗ J.D., Indiana University Robert H. McKinney School of Law (2014); B.A., Evangel University 
(2010). Mr. Burns is an Associate at the international law firm Dentons in Riyadh, Kingdom of 
Saudi Arabia, and is the author of INTRODUCTION TO ISLAMIC LAW: PRINCIPLES OF CIVIL, CRIMINAL, 
AND INTERNATIONAL LAW UNDER THE SHARI’A (2013). The authors wish to thank Ahmad ElAshry 
for his kind assistance in conducting research for this Article. 
1 ADIL SALAHI, MUHAMMAD: MAN AND PROPHET 259 (1995).  
2 PETER MOSKOS, IN DEFENSE OF FLOGGING 5 (2011). 
3 Press Release, Bureau of Justice Statistics, Total U.S. Correctional Population Declined in 2012 
for Fourth Year (Dec. 19, 2013), http://perma.cc/FR49-X55S. 

http://dx.doi.org/10.18060/7909.0032



386 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
1 in 35 U.S. adults or 2.9 percent of the entire adult population in the United 
States.4 Unsurprisingly, these numbers represent the highest incarceration 
rate in the world.5 At 716 incarcerated individuals per 100,000 citizens, our 
total population of prisoners eclipses all others—including China, Russia, 
and Cuba.6 

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.7 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.8 
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.9  

A. Issue 

From these facts, it is evident that the U.S. system of incarceration is 
both expensive (due to the large state and federal expenditures required) and 
lacking in efficacy (due to high probabilities of reincarceration). While this 
system of incarceration is dismal in the economic sense, it is also socially and 
emotionally depressing. While the punishment of imprisonment acts to 
protect society by separating potentially dangerous individuals from the 
outside world, it also breaks apart families, removes employees from their 
jobs, and disconnects young people from potentially the only positive role 
models they will encounter in their childhood. Is judicial corporal 
punishment in lieu of incarceration a better option? 
 
                                                                                                                 
4 Id. 
5 ROY WALMSLEY, INT’L CTR. PRISON STUDIES, WORLD PRISON POPULATION LIST 1 (10th ed. 2013), 
available at http://perma.cc/AD8V-MFS5.  
6 Id. 
7 NANCY LA VIGNE & JULIE SAMUELS, THE GROWTH & INCREASING COST OF THE FEDERAL PRISON 
SYSTEM: DRIVERS AND POTENTIAL SOLUTIONS 2 (2012), available at http://perma.cc/9QQ6-UCC9. 
8 PEW CTR. ON THE STATES, STATE OF RECIDIVISM: THE REVOLVING DOOR OF AMERICA’S PRISONS 1 
(2011), available at http://perma.cc/B4LE-FMFT.  
9 A study conducted by the Bureau of Justice Statistics, which tracked 272,111 inmates in fifteen 
states for three years after their release in 1994, found that 67.5 percent of the individuals were 
rearrested and 51.8 percent of the individuals ended up back in prison. PATRICK A. LANGAN & 
DAVID J. LEVIN, RECIDIVISM OF PRISONERS RELEASED IN 1994, at 1, (2002), available at 
http://perma.cc/PFY5-DQL4. A study conducted by the Pew Center on the States, in collaboration 
with the Association of State Correctional Administrators, largely corroborated these statistics. 
Specifically, the Pew study tracked inmates released from prisons in every State in 1999 and 2004. 
PEW CTR. ON THE STATES, supra note 10, at 2. After three years of release, Pew found that 45.4 
percent of the individuals released in 1999 and 43.3 percent of those released in 2004 had been 
reincarcerated. Id. 



2015] JUDICIAL CORPORAL PUNISHMENT 387 
 
B. Scope 

Several possible solutions exist for curing the problems of criminality, 
recidivism, and mass incarceration; judicial corporal punishment alone is not 
necessarily the principal answer.10 However, the implementation of judicial 
corporal punishment, to a certain degree, is superior to the status quo of 
incarceration in the United States. The purpose of this Article, therefore, is to 
analyze this claim that judicial corporal punishment represents a more 
effective, less costly, and more humane alternative to incarceration. In 
evaluating this assertion, the Article focuses on the example of judicial 
corporal punishment as implemented in jurisdictions applying Islamic 
criminal law.  

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 

 
                                                                                                                 
10 Including, for example, decriminalizing certain non-violent and victimless offenses, advancing 
legislation aimed at expunging criminal records and ending discrimination against former inmates, 
or even pouring more money into the prison system to offer more rehabilitative programs or to 
improve the programs already available. 



388 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
society as a whole will suffer under a system that is repugnant on a much 
broader scale. 

PART II: BACKGROUND 

A. The Five Universal Purposes of Punishment 

In a broad sense, there are five different criminal punishment policies 
which apply universally among all societies and legal systems;11 these 
include (1) incapacitation, (2) deterrence, (3) rehabilitation, (4) restitution, 
and (5) retribution.12 The policy of any given jurisdiction may be inspired by 
more than one theory of punishment.  

Incapacitation refers to the technique of rendering a criminal powerless 
to commit further crime.13 This can be achieved, for example, by 
incarceration, amputation, or execution. Deterrence refers to the goal of 
discouraging both the criminal and other individuals in society from 
committing criminal acts.14 Deterrence can be achieved by public flogging, 
incarceration, monetary fines, and other means. Rehabilitation refers to the 
process by which attempts are made to help former criminals reenter society 
as productive citizens.15 This can be achieved, for example, by ordering 
offenders to undergo counseling, engage in community service, or attend job 
training classes. The theories of restitution and retribution are somewhat 
interrelated. However, the former is aimed at making the victim whole at the 
expense of the criminal in a material, property-based sense, while the latter 
is aimed at satisfying a purely emotional desire to exact vengeance on a 
wrongdoer.16 Restitution can be achieved, for example, by ordering a thief to 
return stolen property to the victim or ordering a vandal to pay for the repair 
of her victim’s damaged property. Retribution, on the other hand, which 
seeks to inflict harm on the criminal for damages caused to her victim,17 can 
be achieved by physical punishments such as flogging. Each of these policies, 
to one degree or another, enjoy support in both U.S. and Islamic criminal 
legal systems. Specifically, the policies of incapacitation, deterrence, and 
rehabilitation are common influences of both systems. 

 
                                                                                                                 
11 CYNDI BANKS, CRIMINAL JUSTICE ETHICS 130 (3d ed. 2013).  
12 Id. at 114; see also, Kenneth R. Feinberg, The Federal Guidelines and the Underlying Purposes 
of Sentencing, 10 FED. SENT’G REP. 39, 39 (1997); Albert W. Alschuler, The Changing Purposes of 
Criminal Punishment: A Retrospective on the Past Century and Some Thoughts about the Next, 70 
U. CHI. L. REV. 1, n.1 (2003); John B. Mitchell, Crimes of Misery and Theories of Punishment, 15 
NEW CRIM. L. REV. 465, 471, n.4 (2012).  
13 BANKS, supra note 13, at 127. 
14 Id. at 117. 
15 Id. at 125. 
16 Id. at 120-29. 
17 Id. at 120. 

http://dx.doi.org/10.2307/20640033


2015] JUDICIAL CORPORAL PUNISHMENT 389 
 
B. What Is Judicial Corporal Punishment? 

The term “corporal punishment” is subject to widely varying 
definitions based on many subjective factors, including cultural norms and 
values, personal experience, education, religious affiliation, social status, and 
so on. Definitions can be broad18 or narrow.19 For purposes of this Article, 
“corporal punishment” refers to an affirmative act of physical harm not 
including death, a serious risk of death, or organ failure. The term “judicial” 
qualifies the act of punishment as one duly ordered by a court or judge after 
the opportunity of a fair trial and proof of guilt beyond a reasonable doubt. 
As a judicial act, the presumption here is that the punishment complies with 
all relevant constitutional provisions and rights including, inter alia, equal 
protection of the law, the right against self-incrimination, the right to confront 
and cross-examine witnesses, and due process of law (both substantive and 
procedural). In other words, the concept of applying judicial corporal 
punishment in the United States is contingent upon the highest level of 
fundamental fairness in all stages of the criminal process.  

C. A Comparative Analysis: Criminal Punishment in the Islamic and U.S. 
Legal Systems 

Many scholars and students with an Islamic legal background often 
lack a basic understanding of fundamental U.S. legal principles and 
structures. Their Western counterparts similarly lack a basic understanding 
of Islamic law, its sources, rules, and underlying policy rationales. While an 
in-depth discussion of either legal system’s foundational principles falls 
outside the scope of this Article,20 the following brief introduction addresses 
their respective methods of punishment, the reasons for implementation (or 
lack of implementation), and the underlying policy aspirations. This section 
begins with an analysis of the methods and policy of criminal punishment 
under Islamic criminal law. It follows with an overview of U.S. 
jurisprudential history and attitudes toward criminal punishment and 
concludes with an analysis of U.S. policy on incarceration.  

 
                                                                                                                 
18 See, e.g., BLACK’S LAW DICTIONARY 1353 (10th ed. 2014) (defining corporal punishment as 
“physical punishment; punishment that is inflicted upon the body (including imprisonment)”); and 
Geoffrey Scarre, Corporal Punishment, 6 ETHICAL THEORY & MORAL PRAC. 296, 297, n.3 (2003) 
(“[I]n the broad sense, any punishment inflicted on the body meant to cause physical pain, 
discomfort or injury counts as ‘corporal.’”). 
19 See, e.g., Scarre, supra note 20, at 1269 (“[F]or the term [corporal punishment] to apply in the 
narrow sense, the pain or harm must be intentionally produced by an act of battery or assault.”). 
20 For a thorough introduction to the basics of Islamic law in general, see JONATHAN G. BURNS, 
INTRODUCTION TO ISLAMIC LAW: PRINCIPLES OF CIVIL, CRIMINAL, AND INTERNATIONAL LAW UNDER 
THE SHARI’A 109-29 (2014), which includes a chapter covering all aspects of Islamic criminal law. 
See also, RAJ BHALA, UNDERSTANDING ISLAMIC LAW (SHARI’A) (2011). 

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390 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 

1. Overview of Punishment in Islamic Criminal Law – Methods and 
Policy 

 a. Analysis of Crime and Punishment in Islamic Criminal Law 

Islamic law criminalizes certain behavior within three different 
categories. These categories consist of Hudud, Quesas, and Ta‘azir offenses. 
Thus, this section will outline these categories of crime under Islamic 
criminal law, their punishments, and their evidentiary requirements. 

 
HUDUD OFFENSES 
 
Hudud (the plural of “Hadd”) are offenses sanctioned by fixed legal 

penalties.21 Hudud crimes are those that bring harm to the essential interests 
of an Islamic community; they imply a grave aggression on society’s peace, 
order, and virtue.22 Thus, punishment for Hudud crimes is the most strict and 
decisive in Islamic criminal law. Accordingly, specific Hudud offenses, their 
punishment, and mitigating and aggravating circumstances were fixed and 
detailed in provisions of the Qur’an23 and Sunnah.24 Considering the severity 
of Hudud penalties, Islamic Law requires the offender to be of capacity, 
acting of his own free will, and most importantly to be proven guilty of the 
crime beyond a reasonable doubt after a fair trial. It should be noted that 
“doubt” is of crucial importance in the application of Hudud penalties as will 
be shown later. 

Hudud generally consist of four agreed-upon offenses: (1) Al-Zena, (2) 
Al-Qazf, (3) Al-Sariqah, and (4) Al-Haraba.25 The first of these offenses, Al-

 
                                                                                                                 
21 Taylor Kamel, The Principle of Legality and its Application in Islamic Criminal 
Justice, in THE ISLAMIC CRIMINAL JUSTICE SYSTEM 149, 163-64 (M. Cherif Bassiouni 
ed., 1982) (citing AL-MAWARDI, AL-AHKAM AL-SULTANIYYA 219). See also generally 
MOHAMED S. EL-‘AWA, PUNISHMENT IN ISLAMIC LAW—A COMPARATIVE STUDY 
(2000). 
22 See generally MUHAMMAD ABU ZAHRAH, CRIME AND PUNISHMENT IN ISLAMIC JURISPRUDENCE 
(1974). 
23 The Qur’an, the holy book of Muslims, is the first and the main source of Islamic law in which 
the word of God was revealed to the Prophet Muhammad (PBUH) verbally through the Angel 
Gabriel over a period of twenty-two years (610-632 C.E.). M. Cherif Bassiouni & Gamal Badr, The 
Shari’ah: Sources, Interpretation, and Rule-Making, 1 UCLA J. ISLAMIC & NEAR E.L. 135, 150 
(2002). 
24 The second principal source of Islamic Law is the Sunnah, or the traditions of Prophet 
Muhammad (PBUH). The Sunnah is important for the interpretation of Qur’anic verses. Id. See 
generally NASSER ALI AL-KHOLAIFY, MITIGATING AND AGGRAVATING CIRCUMSTANCES FOR 
PENALTY OF TA‘AZIR IN ISLAMIC JURISPRUDENCE (1992). 
25 AL-KHOLAIFY, supra note 26, at 21. There are three other controversial offenses which are not 
discussed here; these include Shorb Al-Khamr, or drinking wine; Al-Baghi, or rebellion against 
legitimate authority; and Al-Ridda, or apostasy. Etim O. Okon, Hudud Punishments in Islamic 



2015] JUDICIAL CORPORAL PUNISHMENT 391 
 
Zena, relates to fornication or adultery. The crime may be proven by 
confession or the testimony of four eyewitnesses and is sanctioned by 
flogging with a hundred lashes.26 Al-Qazf, meaning to slander or defame an 
innocent person of the crime of fornication, is punishable by flogging with 
eighty lashes. The penalty requires the accused fornicator to demand the 
application of the penalty to the alleged perjurer.27 Al-Sariqah, or theft, is 
sanctioned by amputation of the hand. For the penalty to apply, the owner 
must claim his property and the stolen object must have been of a specific 
minimum value (which renders the offense grand theft and, thus, punishable 
as a Hudud offense, whereas petty theft is sanctioned by Ta‘azir, as discussed 
in Part II.C.1.a.iii); completely owned and possessed by the owner at the time 
of its theft; and taken from the usual place of preservation (for example, a car 
in a garage or jewels in a vault).28 Additionally, the act of stealing must be a 
violation or an aggression inflicted on secure citizens in their secure places 
(i.e., it must be committed by stealth or by way of concealment).29 Finally, 
the act may only be proven by confession or by testimony of two 
eyewitnesses.30 Al-Haraba, meaning brigandage or spreading chaos, 
involves threats or acts of violence toward passers-by on public roads, which 
may or may not involve murder or larceny.31 It implies any act of aggression 
terrorizing secure citizens (associated with murder and theft or not) including 
acts of terrorism.32 The offense is punishable by various severe penalties, 
including death, crucifixion, amputation of the opposing limbs, or 
banishment.33 To be condemned for this crime, the offender must have used 
a weapon and acted without consideration of law or the safety of others.34 

 
QUESAS OFFENSES 
 
Quesas, meaning “equality” or “equivalence,” refers to an offense 

punishable by the same or a substantially similar act in retaliation for the 
injury inflicted.35 In other words, Quesas involves the redress of a wrong by 
equalizing the harm. In certain cases, a victim or his legal representatives 
may demand other forms of compensation in lieu of physical punishment 
 
                                                                                                                 
Criminal Law, 10 EUR. SCI. J., no. 14, May 2014, at 227, 229, available at http://perma.cc/X3X2-
EU22. 
26 AL-KHOLAIFY, supra note 26, at 24. 
27 Id. at 27. 
28 ABU ZAHRAH, supra note 24, at 125. 
29 Id. at 122. 
30 AL-KHOLAIFY, supra note 26, at 32. 
31 Id. at 35. 
32 ABU ZAHRAH, supra note 24, at 143. 
33 Id. at 146. 
34 AL-KHOLAIFY supra note 26, at 35. 
35 M. Cherif Bassiouni, Quesas Crimes, in THE ISLAMIC CRIMINAL JUSTICE SYSTEM, supra note 23, 
at 203, 203. 



392 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
(Diyya).36 As a third alternative, the victim or his legal representatives may 
wholly forgive the offender.37 

Quesas offenses are divided into two categories. The first comprises 
the intentional act of murder (homicide).38 The second category involves the 
intentional infliction of bodily harm resulting in permanent or serious 
injury.39 This includes maiming, beating, wounding, and other forms of 
physical disfigurement. It should be noted that the formulation of a Quesas 
punishment is based on providing a well-balanced application of justice and 
equality. 

These crimes involve an aggression on the most important personal 
rights. Those are the right to life and the right to corporal integrity. Note that 
punishment for Quesas crimes cannot be applied when the offender is related 
to the victim as, for example, if the offender is the son of the victim.40 

Finally, note that an offender found guilty of causing unintentional 
murder or bodily injury is also liable for Diyya, but not subject to physical 
punishment by Quesas.41 

 
TA‘AZIR OFFENSES 
 
Ta‘azir means discipline, rehabilitation, or discretionary correction. It 

encompasses all offenses for which Shari‘a does not prescribe a 
punishment.42 Thus, all acts (not included in Hudud, Quesas, or Diyya) 
infringing private interests of individuals or public interests of the community 
are included in the Ta‘azir category.43 This imposes a duty on public 
authorities to codify rules penalizing such acts. At the same time, such wide 
discretion provides the flexibility necessary for the law to comply with the 
changes and developments in technology, culture, and the like of each new 
era.44 

Examples given in the Qur’an for this category indicate that the judge 
has wide discretion in imposing punishments.45 However, the judge must 
consider the totality of the circumstances so as to render a penalty 

 
                                                                                                                 
36 AL-KHOLAIFY, supra note 26, at 49. 
37 “But if one is granted any remission by one’s brother, then pursuing the matter for the realization 
of the blood money shall be done with fairness and the murderer shall pay him the blood money in 
a handsome manner.” QUR’AN, Al-Baqarah 2:179, available at http://perma.cc/429F-3VQJ. 
38 “O ye who believe! equitable retaliation in the matter of the slain is prescribed for you.” Id.  
39 “And therein We prescribed for them: A life for a life, and an eye for an eye, and a nose for a 
nose, and an ear for an ear, and a tooth for a tooth, and for other injuries equitable retaliation.” Id. 
at Al-māidah, 5:46, available at http://perma.cc/5ZN7-RLRM. 
40 AL-KHOLAIFY, supra note 26, at 53. 
41 Id. at 57. 
42 Id. at 77-79. 
43 Id. at 89. 
44 Id. at 97. 
45 Id. at 81. 



2015] JUDICIAL CORPORAL PUNISHMENT 393 
 
proportionate to the crime (which must always be more lenient than those in 
Hudud).46 Such wide judicial discretion may include a pardon where the 
crime touches a personal right more than a public interest.  

Ta‘azir offenses include three classes of crime. The first class 
comprises crimes related to Hudud offenses, yet not so grave as to justify the 
prescribed Hudud punishment. The second class comprises Hudud offenses 
where the penalty is not applicable either because of the offender’s condition 
(e.g., reduced mental capacity, lack of volition, or the like); or failure to 
satisfy the strict evidentiary requirements to prove a Hudud evidence, even 
though minimal evidence exists (e.g., where only three males witnessed an 
act of adultery, instead of the requisite four witnesses). In this case, the more 
severe Hadd penalty is replaced with the less severe Ta‘azir penalty. The 
third class involves all other criminal acts that are not penalized with fixed 
legal punishment.47 

Ta‘azir penalties include traditional physical (corporal) punishment 
such as the death penalty, which is rarely imposed, and flogging. Deprivation 
of liberty is another penalty, which includes imprisonment, local banishment, 
displacement, or expulsion. Moreover, pecuniary penalties under Ta‘azir 
include fines and seizure. In certain cases, judges may employ social control 
mechanisms—such as admonition or exhortation, reprimand, threat, or public 
disclosure—to deter offenders from repeating their evil acts.48 

 
INCARCERATION IN ISLAMIC CRIMINAL LAW 
 
Finally, it is important to note that incarceration, while disfavored in 

Islamic criminal law, is available as a means of dealing with offenders. 
Imprisonment existed long before Islam.49 However, neither the Qur’an nor 
the Sunnah provided for the penalty. When Islamic jurisprudence scholars 
provided for imprisonment in their legal commentaries, it typically applied 
only to minor Ta‘azir offenses and for a period not exceeding one year.50 
However, according to other various Islamic interpretations in Islamic fiqh 
(jurisprudence), incarceration in Islamic criminal law is mainly reserved for 
the most dangerous offenders and extreme recidivists.51 Such persons are not 

 
                                                                                                                 
46 See generally Bassiouni, supra note 37, at 233-234 (providing support that an important 
consideration in rendering judgments for criminal offenses is the proportionality between the crime 
and the punishment). Ta‘azir offenses are similar to misdemeanors or minor felonies, whereas 
Hudud offenses are akin to major felonies. 
47 ABU ZAHRAH, supra note 24, at 89. 
48 See generally AL-KHOLAIFY, supra note 26, at 109-177. 
49 “[I]f he do not what I bid him, he shall certainly be imprisoned and become one of the humbled.” 
QUR’AN, Yūsuf 12:33, http://perma.cc/P4N4-MNGJ. 
50 AL-KHOLAIFY, supra note 26, at 133. 
51 Ahmad Abd al-Aziz al-Alfi, Punishment in Islamic Criminal Law, in THE ISLAMIC CRIMINAL 
JUSTICE SYSTEM, supra note 23, at 227, 236. 



394 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
released from prison until the judge has determined that they have truly 
reformed and repented.52 Under Islamic law, incarceration is often 
considered more severe than corporal punishments,53 as punishment in 
Islamic criminal law must be determined according to the principles of 
equality and legality.54 

b. Philosophy of Punishment in Islamic Criminal Law 

The objective of Islamic law is to provide a flawless regulation for 
every aspect of human life55 to ensure the preservation of peace and order in 
the society.56 The public “interest” or “benefit” (Al-Maslahah) is the ultimate 
goal for regulations in Islamic law.57 Thus, the public interest is the basis of 
punishment in Islamic law.58 Under Islamic jurisprudence, the “public 
interest” comprises the “Five Essential Purposes,” which include the 
protection of (1) religion, (2) life, (3) lineage, (4) intellect, and (5) property.59 
As the Qur’an observes, “whoever kills a soul unless for a soul or for 
corruption [done] in the land – it is as if he had slain mankind entirely. And 
whoever saves one – it is as if he had saved mankind entirely.”60 This verse 
clarifies that the infliction of a crime upon an individual is also an aggression 
on the community as a whole. 

Accordingly, offenses that jeopardize the very foundation of society are 
strictly punished with fixed penalties (Hudud offenses). It was the 
catastrophic consequences they cause in community that was considered 
when fixing Hudud penalties. In particular, the spread of fornication and 
slander would lead to the disintegration of the family and corrupt the lineage 
in society.61 Additionally, the spread of theft would disrupt the peace and 
order of the society, leaving people with a sense of insecurity for their 
property or their life.62 

Furthermore, punishment in Islamic law seeks to provide the perfect 
application of justice and equality. This is emphasized in the Qur’anic verse: 
“O believers, be you securers of justice, witnesses for God. Let not 
detestation for a people move you not to be equitable; be equitable—that is 

 
                                                                                                                 
52 Ghaouti Benmelha, Ta’azir Crimes, in THE ISLAMIC CRIMINAL JUSTICE SYSTEM, supra note 23, 
at 211, 217. 
53 Bassiouni, supra note 37, at 228-230.  
54 Id.  
55 Id. at 231.  
56 Id. 
57 Id. at 232, 233. 
58 Id. 
59 Id. 
60 QUR’AN, Sūrat l-māidah 5:32, available at http://perma.cc/VD6R-UQLV. 
61 Bassiouni, supra note 37, at 232, 233. 
62 Id. 



2015] JUDICIAL CORPORAL PUNISHMENT 395 
 
nearer to godfearing . . . .”63 In this regard, punishment for Quesas offenses 
seeks to provide the perfect manifestation of justice and equality. Punishment 
by Quesas is applied only in cases of deliberate aggression on the life or 
bodily integrity of the victim, which are personal rights applicable to every 
human being. Without punishment by Quesas, these acts of aggression could 
have created an endless circle of revenge that knew no equality where the 
strong preyed on the weak. Punishment by Quesas, as detailed, seeks to serve 
justice and equality by healing the victim or his relatives and friends.64 

c. Application of Punishment in Islamic criminal Law: Theory Versus 
Practice 

Evidence plays an important role in Islamic criminal law where the 
presumption of innocence is fundamentally protected. Since Hudud penalties 
are more severe that other sanctions, the following discussion is limited to 
these offenses. In this regard, evidentiary standards concerning witness 
testimony and confessions require some elaboration.65 

First, evidence in support of conviction must be “conclusive” in order 
to “clearly and explicitly prove the occurrence of the criminal act without any 
need for explanation or interpretation.”66 The time, place, and all other 
circumstances of the alleged crime must be specified and, above all, must be 
consistent with all other evidence. Second, until the time of execution, the 
evidence must be conclusive. Third, there should be no delay in the 
presentation of evidence. If the means of obtaining evidence (from testimony 
or confession) does not fulfill these conditions, it raises doubt as to the 
authenticity of the allegation. And doubt, or Shobhah, according to the 
Prophetic Hadith, “precludes the application of Hudud penalties.”67  

On the matter of testimony, Islamic jurists generally agree that for 
Hudud and Quesas offenses, two witnesses must provide consistent 
testimony. Witnesses must exhibit maturity, memory, speech, visual and 
audible awareness of the crime, moral integrity, authenticity where the 
witness must have seen and/or heard the incident himself, and, though subject 
to debate, acceptance of Islam.68 Testimony shall be disqualified because of 
blood relation, enmity, or partiality. Cases of adultery require the testimony 
of four male witnesses (though two female witnesses can substitute for one 

 
                                                                                                                 
63 QUR’AN, Sūrat l-māidah 5:8 available at http://perma.cc/K9V6-PH5W. 
64 Bassiouni, supra note 37, at 232, 233. 
65 See Mohamed ‘Arafa, Corruption and Bribery in Islamic Law: Are Islamic Ideals Being in 
Practice?, 18 ANN. SURV. INT’L. & COMP. L. 171, 184-186 (2012). 
66 Ma’amoun M. Salama, General Principles of Criminal Evidence in Islamic Jurisprudence, in 
THE ISLAMIC CRIMINAL JUSTICE SYSTEM, supra note 23, at 112. 
67 Id.  
68 Id. at 116. 



396 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
male witness) with consistent testimony provided at the same hearing.69  

Confessions are inadmissible unless the confessor is of age, 
demonstrates maturity, and is capable of self-expression and acting of his 
own free will. The confession must be unequivocal, taking place in and 
during a legal hearing, and the judge must find it corroborated by other 
circumstances.70 A confession only implicates the accused and does not 
prove guilt unless the judge is fully convinced of it.71  

Moving on to the Prophetic Hadith: “Doubt precludes the application 
of Hudud penalties.”72 Islamic criminal law seeks to limit the application of 
Hudud penalties to the greatest possible extent. Thus, Shobhah, or strong 
doubt, negates incrimination and results in a pardon of the accused, while 
weak doubt extenuates the penalty from Hudud to Ta‘azir.73 Doubt can arise 
over a material element of the crime, the presence of criminal intent, the 
incrimination of controversial acts, or related evidence.74 For example, the 
Caliph ‘Umar Ibn Al-Khattab refrained from imposing the punishment of 
amputation for an act of theft due to the circumstances of drought and 
starvation.75 

Islamic criminal law further aspires to balance deterrence and 
incapacitation (through decisive penalties), with compassion and 
rehabilitation (by requiring strict conditions and allowing lenience). Another 
important issue is the mitigating and aggravating circumstances in Islamic 
criminal law. Both types of circumstances affect penalties differently in 
Hudud, Quesas, and Ta‘azir offenses. For fixed punishment in Hudud and 
Quesas offenses alone, a penalty can never be aggravated or mitigated. 
However, the punishment could be aggravated or mitigated by adding or 
replacing a Ta‘azir penalty in certain cases.76 As for unfixed punishments 
(Ta‘azir), it is for the judge’s discretion to consider the circumstances in light 
of the offense, including any mitigating circumstances, such as the offender’s 
mental or physical status, age, family background, wealth, and the like.77 It 
is important to note that the general criterion for applying a more severe 
Ta’azir penalty is based on the effectiveness and deterrence of the 
punishment, while the previously mentioned Hadith provides for a less 
severe penalty where mitigating circumstances exist. 

Aggravating circumstances include the danger imposed by the 
offender; the social class he represents (consideration of which serves to deter 

 
                                                                                                                 
69 Id. at 118. 
70 Id. at 119-120. 
71 Id. at 120. 
72 Id. 
73 ABU ZAHRAH, supra note 24, at 224. 
74 Id. at 188-224. 
75 Id. at 221. 
76 AL-KHOLAIFY, supra note 26, at 215-221. 
77 Id.  



2015] JUDICIAL CORPORAL PUNISHMENT 397 
 
the rich, rather than the poor); the effect he leaves on society (i.e., whether 
he is a factor in spreading crime); the potential for committing the offense in 
public; and the possibility of recidivism. The circumstances of the crime 
include the place and time of its commission, the gravity of the crime, and 
the status of the victim.78 Thus, whether aggravating or mitigating the 
punishment, the judge must balance the severity of the penalty with 
circumstances of the crime and the offender’s status.  

d. The Policy of Judicial Corporal Punishment in Islamic Criminal 
Law 

As mentioned above, judicial corporal punishment under Islamic 
criminal law is required for certain hudud (fixed) offenses when strict 
evidentiary thresholds are met. Moreover, judicial corporal punishment, 
among other forms of punishment, is available at the discretion of the judge 
for tazir offenses. 

The theories of penal policy supporting judicial corporal punishment in 
Islamic criminal law are equal to those supporting incarceration—namely 
incapacitation, deterrence, and rehabilitation. However, retribution may also 
play a role (for better or worse) in some cases in Islamic legal jurisdictions. 
This can occur when principles of criminal procedure and due process under 
Islamic law are violated when, for example, the judge deciding the case lacks 
disinterest or impartiality, and in cases where the court lacks competence and 
fairness. 

The prescribed punishments of amputation arguably serve to 
incapacitate the criminal. Without the use of a hand, a thief is less likely to 
steal again. And without the use of opposing limbs, a criminal is likely unable 
to threaten, attack, and/or rob another individual again. Further, to the extent 
that flagellation renders the defendant non-ambulatory and confined to bed 
rest for recovery, this punishment also serves to incapacitate, albeit for a 
temporary period. 

Amputation and flagellation serve the deterrence purpose of 
punishment by discouraging the criminal and society from committing crime. 
Individuals who undergo amputation for conviction of theft or highway 
robbery resulting in physical harm to the victim will be extremely 
discouraged from committing theft again, lest they lose remaining limbs. 
Further, these individuals are forever known in society as convicts, sinners, 
and reprobates due to the largely non-concealable nature of their punishment. 
Thus, society is deterred from committing the crime to avoid the visual 
stigma of amputation as a criminal punishment. In the same way, individuals 
subjected to the brutal and gruesome punishment of flagellation undergo 
excruciating pain both during and after the ordeal; and they bear their scars 

 
                                                                                                                 
78 Id. 



398 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
forever. If carried out in public, society is reminded of the painful 
consequences that can result from commission of the specified Hudud 
offenses. 

Finally, judicial corporal punishment under Islamic law serves a 
rehabilitative purpose in Islamic society. That is, according to the spirit and 
intent of Islamic criminal law, after a criminal has endured the physically 
excruciating and mentally shocking ordeal of judicial corporal punishment, 
she should immediately be turned over to the care and custody of her family. 
Thus, as the criminal recovers from her wounds and processes the mental and 
emotional shock of the punishment, she should constantly be in the presence 
of and attended to by her family—those who, ideally, care most for her 
functional and societal wellbeing. During this time, the family members and 
the criminal should convene, connect, and correct the problems in the 
criminal’s life, thereby achieving the rehabilitative policy of criminal 
punishment.  

2. Overview of Criminal Punishment in the United States – From 
Judicial Corporal Punishment to Incarceration 

 
Western civilization has departed from the rest of the world in many 

respects. One such example is in the area of criminal punishment. There was 
a time when judicial corporal punishment was simply accepted as common 
sense. However, as Western civilization progressed, the implementation of 
judicial corporal punishment slowly came to be considered repugnant and, 
accordingly, was replaced with other forms of punishment—most 
prominently, incarceration.  

 

a. Historical and Constitutional Analysis of Judicial Corporal 
Punishment in the United States 

 
The following section provides an overview of approaches to judicial 

corporal punishment in the United States. Following a brief historical 
analysis of Anglo-American legal philosophy, this section examines the 
evolution of Eight Amendment jurisprudence and the death of judicial 
corporal punishment in the United States. 

a. English Ancestry 

American jurisprudence is derived in large part from the English 
Common Law tradition. Moreover, as Justice Antonin Scalia observed in 



2015] JUDICIAL CORPORAL PUNISHMENT 399 
 
Harmelin v. Michigan,79several major provisions of the U.S. Bill of Rights, 
including the Eight Amendment, originate in the English Declaration of 
Rights of 1689.80 In determining the meaning and intent of the “cruell and 
unusuall Punishments [sic]” clause, Scalia cites the case of Titus Oates, an 
English clergyman whose perjury at the trials of 15 Catholics resulted in their 
executions.81 At the sentencing stage of Oates’ trial for having committed the 
perjury, the judges exercised their discretion in implementing punishment 
intended to brutalize, humiliate, and ultimately kill Oates. Specifically, they 
ordered that he should stand in the stockade at specific times and places, be 
whipped by “the common hangman,” and imprisoned for life.82 The Oates 
case helped prompt the English Declaration’s “cruell and unusuall 
Punishments [sic]” clause.83 However, according to Scalia, it was the fact 
that the judges gave themselves extrajudicial discretion to inflict punishment 
on Oates, and not the sheer brutality of corporal punishments inflicted during 
that time, which gave rise to the clause.84 In that regard, Scalia notes that “the 
vicious punishments for treason decreed in the Bloody Assizes (drawing and 
quartering, burning of women felons, beheading, disemboweling, etc.) were 
common in that period—indeed, they were specifically authorized by law and 
remained so for many years afterwards.”85  

b. “Cruel and Unusual Punishment” in the Bill of Rights and in the 
Individual States 

In discussing the adoption of the Eighth Amendment to the U.S. 
Constitution, it is important to keep in mind the context of the debates over 
the Bill of Rights at the first Congress. At that time, the individual states were 
fiercely independent, protective of their individual sovereignty, and terrified 
of the adverse nature of a centralized, federal system of government, 
especially given the history of abuse back in England and in the colonies.86 

 
                                                                                                                 
79 See Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991) (plurality opinion) (Kennedy, J., 
concurring in part and concurring in the judgment) (White, Marshall & Stevens, JJ., dissenting). 
80 Id. at 966 (noting that “[t]here is no doubt that the [English] Declaration of Rights [of 1689] is 
the antecedent of our constitutional text. . . . In fact, the entire text of the Eighth Amendment is taken 
almost verbatim from the English Declaration of Rights, which provided ‘[t]hat excessive Baile 
ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments 
inflicted’[sic]”); see also, Solem v. Helm, 463 U.S. 277, 285 (1983) (5-4 decision) (Burger, CJ., 
dissenting). 
81 Harmelin, 501 U.S. at 969-73. 
82 Id. at 970. 
83 Id. at 971. 
84 Id. 
85 Id. at 968 (citing Anthony F. Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The 
Original Meaning, 57 CALIF. L. REV. 839, 855-56 (1969)). 
86 THE CONSTITUTIONAL CONVENTION: A NARRATIVE HISTORY FROM THE NOTES OF JAMES 
MADISON 5 (Edward J. Larson & Michael P. Winship, eds., 2005). 



400 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
Thus, members of Congress demanded a Bill of Rights that would restrain 
the federal government against foreseeable abuses carried out against the 
states and their citizens.87 Nonetheless, many states had similar provisions in 
their own constitutions proscribing “cruel or unusual punishments,”88 or 
simply “cruel punishments.”89 It was Virginia’s formula, influenced by the 
English Declaration, which was ultimately adopted as the text of the Eighth 
Amendment.90  

During this time, punishment under the criminal law was principally a 
matter of concern for the individual states and the federal government had a 
largely undeveloped role.91 Thus, the U.S. Supreme Court was not able to 
develop much precedent defining the constitutional limits of the Eighth 
Amendment. Moreover, judicial corporal punishment was widely accepted 
by the states and commonly implemented by state judicial authorities without 
question as to either its cruelty or unusualness.92 

c. Eighth Amendment Constitutional Jurisprudence 

It was not until 1890 that the Supreme Court hinted at the penal 
methods tolerated by the Eighth Amendment. In In re Kemmler, a convicted 
murderer filed a habeas corpus petition, alleging that New York’s newly-
enacted method of execution by electricity was a form of cruel and unusual 
punishment prohibited by the Eighth Amendment.93 First, the Court refused 
to incorporate the Eighth Amendment’s protections against the states via the 
Fourteenth Amendment.94 In dicta, however, the Court went on to note that 

 
                                                                                                                 
87 Id. at 149-150. 
88 See, e.g., DEL. DECLARATION OF RIGHTS § 16 (1776); MD. DECLARATION OF RIGHTS art. XXII 
(1776); MASS. DECLARATION OF RIGHTS art. XXVI (1780); N.C. DECLARATION OF RIGHTS § X 
(1776); N.H. BILL OF RIGHTS art. XXXIII (1784). 
89 PA. CONST. art. IX, § 13 (1790); S.C. CONST. art. IX, § 4 (1790). 
90 See VA. DECLARATION OF RIGHTS § 9 (1776). 
91 Larson & Winship, supra note 88, at 5. 
92 SANAZ ALASTI, CRUEL AND UNUSUAL PUNISHMENT: COMPARATIVE PERSPECTIVE IN 
INTERNATIONAL CONVENTIONS, THE UNITED STATES AND IRAN 213 (2009) (“Most towns in New 
England boasted whipping posts and stocks near the commons or meetinghouse. As late as 1805, 
the penalty in Massachusetts for counterfeiting was the amputation of an ear after sitting in a pillory 
for an hour. The penalty for manslaughter consisted of having one’s forehead branded in public, 
and many communities flogged perpetrators for petty theft.”) 
93 In re Kemmler, 136 U.S. 436 (1890). 
94 The Incorporation Doctrine provides for the Constitutional Amendments in the Bill of Rights – 
originally meant to constrain only the federal government – to be applied against and to restrain the 
several States. See GEOFFREY STONE ET AL., CONSTITUTIONAL LAW 729 (6th ed. 2009). Lexically, 
this is achieved through the Due Process Clause of the Fourteenth Amendment of the U.S. 
Constitution, which provides that no State shall deprive any citizen of due process of law. Id. Thus, 
Kemmler argued that the rights provided in the Eighth Amendment coincided with the definition of 
“due process” as provided in the Fourteenth Amendment and, therefore, that New York and other 
states could not inflict “cruel and unusual punishment” as contemplated in the Eighth Amendment 



2015] JUDICIAL CORPORAL PUNISHMENT 401 
 
the Constitution of New York contained language similar to its federal 
counterpart and that: 

If the punishment prescribed for an offense against the laws 
of [New York] were manifestly cruel and unusual as burning 
at the stake, crucifixion, breaking on the wheel, or the like, 
it would be the duty of the [New York] courts to adjudge 
such penalties to be within the constitutional prohibition.95 

The Court also hinted at the proposition that federal courts should be 
guided by the same rationale in regard to the Eighth Amendment.96 The Court 
went on to note that: 

“Difficulty would attend the effort to define the exactness 
the extent of the constitutional provision which provides that 
cruel and unusual punishments shall not be inflicted; but it 
is safe to affirm that punishments of torture . . . are forbidden 
by [the Eighth Amendment].” Punishments are cruel when 
they involve torture or a lingering death.97  

For over seventy years following the decision in Kemmler, the Supreme 
Court’s Eighth Amendment jurisprudence stagnated. The reason for this is 
largely due to the fact that the prosecution and punishment of crime has 
historically been a matter of state rather than federal concern.98 This changed 
in 1962, however, when the Court applied the Eighth Amendment to the 
states under the Doctrine of Incorporation.99 The Court’s Eighth Amendment 
jurisprudence expanded further during the 1970s when the federal 
government took a significant role in crime control with the “War on 

 
                                                                                                                 
upon its citizens. However, this would have only been the first step in Kemmler’s long battle. Even 
if Kemmler had successfully argued that the Eighth Amendment coincided with the definition of 
“due process” as provided in the Fourteenth Amendment, he would then have to persuade the Court 
that death by electrocution was a cruel and unusual punishment under the Eighth Amendment. 
95 In re Kemmler, 136 U.S. at 446. 
96 Id.  
97 Id. at 447 (quoting Wilkerson v. Utah, 99 U. S. 130, 135 (1878)). The definition of “torture” in 
1890 likely referred to “extreme pain; anguish of body or mind; torment.” WEBSTER’S A 
DICTIONARY OF THE ENGLISH LANGUAGE 442 (Acad. ed. 1874). An alternative definition was “a 
putting to the rack or severe pain to extort a confession or as a punishment; extreme pain; anguish 
of body or mind.” CHAMBER’S ETYMOLOGICAL DICTIONARY OF THE ENGLISH LANGUAGE 524 (Rev. 
ed. 1882).  
98 KRISTIN M. FINKLEA, LISA M. SEGHETTI, CONG. RESEARCH SERV., RL32824, FEDERAL CRIME 
CONTROL: BACKGROUND, LEGISLATION, AND ISSUES 1 (2008) [hereinafter FEDERAL CRIME 
CONTROL], available at http://perma.cc/4796-4B2U. 
99 Robinson v. California, 370 U.S. 660 (1962) (White & Clark, JJ., dissenting).  



402 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
Drugs.”100 By this time, however, judicial corporal punishment had long 
since died in each individual State.101 Thus, the body of law under the Eighth 
Amendment today largely consists of questions of proportionality of 
punishment,102 extrajudicial corporal punishment,103 and corporal 
punishment in schools.104 There is no Supreme Court precedent that squarely 
addresses the constitutionality of judicial corporal punishment. 

d. Shifting Attitudes toward Judicial Corporal Punishment 

The gradual dying out of judicial corporal punishment in the United 
States is somewhat of a mystery; a mystery which is made more complex due 
to the nuanced nature of the U.S. system of law and government. That is, 
since the Eighth Amendment was not made applicable to the States until 1962 
through the Incorporation Doctrine, and since the last incidence of judicial 
corporal punishment occurred ten years prior,105 there are potentially fifty 
different narratives about the use, struggle against, and eventual abolition of 
judicial corporal punishment, one narrative for each different State.  

Alabama attorney and judicial corporal punishment advocate John 
Dewar Gleissner posits that judicial corporal punishment died out in the 

 
                                                                                                                 
100 The expansion of the federal government’s role in crime control began to reach a peak in 1986, 
when Congress passed several pieces of legislation that made certain crimes a federal offense, 
crimes that had theretofore been under the sole jurisdiction of the States. FEDERAL CRIME CONTROL, 
supra note 100, at 2. 
101 The last incident of judicial corporal punishment occurred in the State of Delaware in 1952, 
when a 30 year-old man was punished with twenty lashes after being convicted of beating a 59 year-
old woman. See Corporal Punishment, ENCYCLOPEADIA BRITANNICA, http://perma.cc/QQ8J-N28R 
(last visited Mar. 31, 2014); see also, “Only the Instrument of the Law”: Baltimore’s Whipping 
Post, MD. HIST. SOC’Y (Oct. 3, 2013), http://perma.cc/2LGE-RLTM; see also, Jay Scriba, When the 
Whip Was Law, MILWAUKEE J., March 3, 1964, at 16. 
102 See, e.g., Weems v. United States, 217 U.S. 349 (1910) (finding that “punishment for crime 
should be graduated and proportioned to the offense,” that a sentence of 15 years hard labor was 
disproportionate to the offense of falsification of a government document and was thus, cruel and 
unusual) (White, J., dissenting); see also, Ewing v. California, 538 U.S. 11 (2003) (finding that a 
sentence of 25 years to life imprisonment for a recidivist felon convicted of stealing 3 golf clubs 
was proportionate to the offense and, thus, not a cruel and unusual punishment) (Scalia & Thomas, 
JJ., concurring in result) (Stevens & Breyer, JJ., dissenting). 
103 See, e.g., Hudson v. McMillian, 503 U.S. 1 (1992) (finding that a prison guard’s use of excessive 
physical force against a prisoner that caused minor injuries not requiring medical attention was cruel 
and unusual punishment) (Stevens, J., concurring in part and concurring in the judgment) 
(Blackmun, J., concurring in judgment) (Thomas, J., dissenting); see also Wilkins v. Gaddy, 559 
U.S. 34 (2010) (finding that a prisoner’s allegation that an unprovoked prison guard punched, 
kicked, kneed, and choked him was sufficient to state a § 1983 claim for relief for cruel and unusual 
punishment, even though the injuries were de minimis) (Thomas, J., concurring in judgment). 
104 See, e.g., Ingraham v. Wright, 430 U.S. 651 (1977) (finding that disciplinary corporal 
punishment applied by a public school official on a student was not cruel and unusual punishment) 
(White & Stevens, JJ., dissenting). 
105 See supra text accompanying note 101.  



2015] JUDICIAL CORPORAL PUNISHMENT 403 
 
United States as the level of equality, racial harmony, and social mobility 
amongst citizens increased.106 That is, as a historical fact, criminals in society 
are generally drawn from the lowest ranks of status and wealth.107 
Throughout history, wealthier individuals generally avoided criminal 
punishment because they either never needed to commit a crime in the first 
place in order to secure basic necessities or, alternatively, they could simply 
bribe the judicial authorities for leniency. As a result, judicial corporal 
punishment was applied almost exclusively to the poor.108 Apart from wealth 
status, Gleissner notes, the improvement of race relations also played a role 
in the demise of judicial corporal punishment.109 That is, the brutal act of 
corporal punishment was undeniably reminiscent of the evil institution of 
slavery, which by the late-nineteenth century led Americans to demand that 
all forms of corporal punishment on adults be abolished. Thus, Gleissner 
notes, as equality, tolerance, acceptance, and social mobility amongst the 
lower ranks of society began to increase in the United States, the very thought 
of judicial corporal punishment became repugnant due to the lingering scars 
of slavery, racism, and oppression.110 

Another view, however, posits that the demise of judicial corporal 
punishment began long before the anti-slavery movement in the United States 
gained momentum. This view points to the literature in the late eighteenth 
and early-nineteenth centuries, which largely condemned the practice of 
corporal punishment for its non-reformative attributes and celebrated 
imprisonment as a superior form of punishment and an opportunity to 
rehabilitate wayward fellow citizens.111 The noted reformist Horace Mann, 
as an example, “expressed widely shared sentiments when he declared that 
the fear of corporal punishment might ‘make an offender cease to do ill,’ but 
it can never ‘make him love to do well.’”112 

In any case, the fact is that judicial corporal punishment has been 
completely eradicated from the American penal philosophy and replaced 
with the current regime of fines, restitution, community service, suspended 
sentences and probation, miscellaneous alternative sentences, and 

 
                                                                                                                 
106 John Dewar Gleissner, Why Was Judicial Corporal Punishment Abolished?, INCARCERATION 
REFORM (Apr. 7, 2012), http://perma.cc/AD5U-8NZS. 
107 Id. 
108 Id. 
109 Id. 
110 Id. 
111 KEVIN J. MURTAGH, CORPORAL PUNISHMENT: A HUMANE ALTERNATIVE TO INCARCERATION 2 
(2012) (“Many reformers at the time had high hopes for the reformative potential of imprisonment 
and they were eager to leave behind a form of punishment that was thought to lack the ability to 
change the moral character of offenders.”); see also ALASTI, supra note 94, at 212, 213.  
112 MYRA GLENN, CAMPAIGNS AGAINST CORPORAL PUNISHMENT: PRISONERS, SAILORS, WOMEN, 
AND CHILDREN IN ANTEBELLUM AMERICA 41 (1984). 



404 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
incarceration.113 This latter punishment, incarceration, will now be analyzed 
according to the five purposes of punishment.  

e. Criminal Punishment in the United States Today – The Objective 
Policy of Incarceration 

In a light most favorable to a proponent of incarceration, an 
examination of this method of punishment shows that it is heavily inspired 
by the incapacitation, deterrence, and rehabilitation theories of criminal 
punishment. First, incarceration serves to incapacitate otherwise harmful 
individuals in society by placing them in a controlled environment, 
extinguishing their ability to move freely throughout society, and subjecting 
them to constant surveillance and control. Thus, when a criminal is 
incarcerated, she is effectively rendered powerless in a criminal capacity. 

Next, incarceration serves as a deterrent to both the criminal and 
society against the future commission of crime. That is, incarcerated 
criminals and individuals in society view incarceration as a severely unhappy 
and inconvenient experience. And, if these individuals view the risk of 
incarceration as outweighing the potential benefit of committing crime, then 
the punishment of incarceration has served its deterrent purpose. 

Finally, incarceration serves a rehabilitative purpose for criminals in 
society. That is, when a criminal is incarcerated, she is generally away from 
the individuals and circumstances in society that may have encouraged or 
caused her to commit the criminal act(s). Thus, she is able to stop and reflect 
on her life, the choices she has made, and the path which she would like to 
take in the future. If this path does not involve any more crime, then 
incarceration has served its rehabilitative penal purpose. Incarceration as a 
form of punishment can become more rehabilitative when it includes 
additional benefits for the betterment of the criminal. For example, 
incarceration including access to counseling, job training, educational 
classes, and paid employment can help the criminal to become a better and 
more functional member of society when her time for release into the general 
public comes. 

PART III: ARGUMENT 

From the foregoing analysis in Part II, it is evident that incarceration 
and judicial corporal punishment as implemented in Islamic criminal law 
share the same penal aspirations. That is, the objective of both systems is 
incapacitation, deterrence, and rehabilitation. After considering the 
drawbacks of judicial corporal punishment as implemented in Islamic 

 
                                                                                                                 
113 Sentencing Alternatives: Prison, Probation, Fines, and Community Service, NOLO, 
http://perma.cc/93JX-8ZGN (last visited Mar. 31, 2014). 



2015] JUDICIAL CORPORAL PUNISHMENT 405 
 
criminal law, this section attempts to show how judicial corporal punishment 
is more humane, less costly, and more effective at meeting the common penal 
aspirations of rehabilitation and deterrence than incarceration by pointing to 
the longstanding example of its implementation in Islamic criminal law.  

A. Drawbacks of Replacing Incarceration with Judicial Corporal 
Punishment 

While this Article concludes that implementing judicial corporal 
punishment to some degree is superior to the status quo of incarceration in 
the United States, the drawbacks of judicial corporal punishment—in general 
and as specifically implemented in Islamic criminal law—must be exposed 
and confronted at the outset. Specifically, incarceration meets the 
incapacitation purpose of criminal punishment much more effectively than 
does judicial corporal punishment as implemented in Islamic criminal law. 
Further, in regard to situations where an innocent individual is wrongfully 
convicted and later exonerated, incarceration may be a superior form of 
punishment than judicial corporal punishment as implemented in Islamic 
criminal law. Finally, incarceration is superior to judicial corporal 
punishment as implemented in Islamic criminal law in regard to the treatment 
of certain individuals with unique mental and/or physical disabilities and 
individuals who simply pose an excessive risk of danger to society.  

1. Contradictoriness and Disadvantages of Amputation as a Form of 
Punishment in Islamic Criminal Law  

To begin, it must be acknowledged that the application of amputation 
as a criminal punishment in Islamic criminal law is largely inefficient, 
imprudent, and contradictory to the underlying policies which Islamic law in 
general seeks to support and develop. That is, if judicial corporal punishment 
in Islamic criminal law is purposed in, inter alia, reducing taxpayer burdens, 
rehabilitating the offender, and allowing him to continue to contribute to the 
wellbeing of society and his family, then amputation fails to achieve these 
goals since the amputee-offender is at risk of losing his ability to work and 
provide for his family, thereby increasing the chance that both he and his 
family will be driven to more crime and/or become taxpayer burdens. Thus, 
as a preliminary matter regarding the drawbacks of judicial corporal 
punishment as implemented in Islamic criminal law, it is appropriate to begin 
with an acknowledgement that the adverse consequences of amputation 
substantially outweigh its positive effects of deterrence, incapacitation, and 
rehabilitation.114 
 
                                                                                                                 
114 But this view would be met with vociferous dissent by some proponents of Islamic criminal law, 
who would point to the proposition that the evidentiary requirements for the hudud penalties are so 
strict and the mitigating factors so liberal that very few people will actually be subjected to the 



406 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 

2. Superiority of Incarceration vis-à-vis the Penal Purpose of 
Incapacitation 

Next, it must be conceded that, concerning the penal purpose of 
incapacitation, incarceration is superior to judicial corporal punishment as 
implemented in Islamic criminal law, despite the fact that incarceration is 
subject to some serious flaws in this regard.  

a. Flaws of Incarceration 

First, while incarceration theoretically serves to meet the incapacitation 
policy of criminal punishment by rendering criminals unable to commit 
crime, crime continues to exist in prisons, even behind fortified walls guarded 
by trained professionals.115 Guided by sophisticated rules, ethics codes, and 
even constitutions, “prison gangs have considerable influence over other 
inmates. Their criminal activities include loan sharking, narcotics trafficking, 
protection, prostitution, robbery, witness intimidation, and murder.”116 And, 
“[a]lthough guards may act like they’re in charge, because of the sheer 
numbers, prisons are, in effect, run by prisoners. And without legal forms of 
settling disputes and conducting transactions, violence and criminality 
become the norm.”117 

However, this is just in reference to activities within the prison. When 
it comes to committing crime in the general public, prisoners are not 
necessarily restrained by the prison walls and, in many cases, are known to 
facilitate serious crime that occurs on the outside.118 Gang leaders and 
members, through visitors and other ingenious methods, are able to transmit 
messages and communication devices, currency, and contraband between 
prison and outside society.119 
 
                                                                                                                 
punishment and, therefore, the severity of the punishments, coupled with the mere possibility of 
their application, acts to sufficiently deter the proscribed conduct. Aly Aly Mansour, Hudud Crimes, 
in THE ISLAMIC CRIMINAL JUSTICE SYSTEM, supra note 23, at 195, 196. Dissenters would further 
add that “[b]y severing the hand of the robber, Islam gets to the root of evil; it extracts the rotten 
seeds in order to purify and protect society and the individual from destruction.” Id. 
115 Dennise Orlando-Morningstar, Prison Gangs, SPECIAL NEEDS OFFENDERS BULL., Oct. 1997, at 
1, available at http://perma.cc/X7UW-WZYY (“[P]risoners formed gangs primarily to protect 
themselves and to monopolize illegal prison activities such as gambling, trading contraband, 
narcotics trafficking, and committing contract murders.”). 
116 Id. 
117 MOSKOS, supra note 4, at 52. 
118 Orlando-Morningstar, supra note 117, at 8 (noting the example of a Florida inmate who was 
suspected of facilitating the murder of two Massachusetts gang members using a prison telephone 
and that “the true masterminds are the ones who have 24 hours to sit around in jail and figure out 
what to do next and to who. The men in prison are sending orders out to people on the streets”). 
119 See id. at 9 (“Prison gang members often rely on females (e.g., wives, mothers, sisters, and 
girlfriends) to relay messages, bring contraband into prison, and provide other forms of 
assistance.”); see also Cannabis Cat on Drugs Run Collared at Moldova Jail, BBC NEWS (Oct. 18, 



2015] JUDICIAL CORPORAL PUNISHMENT 407 
 

b. Flaws of Judicial Corporal Punishment as Implemented in Islamic 
Criminal Law 

One could argue that judicial corporal punishment as implemented in 
Islamic criminal law serves to incapacitate offenders to the extent that, after 
undergoing the ordeal, they are subject to bed rest for several days. Further, 
this argument could be extended to the proposition that amputation of a limb 
extinguishes a thief’s capacity to steal or an aggressor’s capacity to pose a 
meaningful physical threat to another. However, these arguments fail. While 
there are no loopholes or opportunities to exploit the physical nature of 
judicial corporal punishment in Islamic criminal law, the offender subjected 
to flagellation will recover after a few days. Thereafter, he is free to move 
openly throughout society and, if he chooses, to commit more crime. In the 
same way, the amputee-offender is not prohibited from engaging in the 
cerebral, logistical aspects of crime as, for example, a scam artist or as part 
of a larger criminal organization.  

Frankly, judicial corporal punishment as implemented in Islamic 
criminal law only effectively achieves the penal purpose of incapacitation to 
the extent that it meets the penal purpose of deterrence. Put differently, the 
deterrent effect of the corporal punishments in Islamic criminal law may 
strike fear in the hearts of citizens such that the thought of committing crime 
becomes so fearsome that their capacity for doing so is extinguished. 
However, this view flies in the face of the overarching theory of civility and 
mercy in Islamic law.120 Thus, in regard to the penal purpose of 
incapacitation, “prisons get a gold star”121 despite their failure in most other 
respects. 

3. Superiority of Incarceration vis-à-vis the Exoneration of 
Wrongfully Convicted Individuals 

Next, it must be acknowledged that, despite the safeguards in the 
American criminal justice system in regard to evidence, due process, 
fundamental fairness, and standards of proof, innocent individuals are at 
times wrongfully convicted of crimes.122 Thus, in regard to situations where 
an innocent individual is wrongfully convicted and later exonerated, 
 
                                                                                                                 
2013), http://perma.cc/NZ52-BG6Y (noting the case of a cat used by inmates to deliver drugs into 
a prison); and Cat Caught Smuggling Cell Phones Into Russian Prison, HUFF. POST (June 3, 2013), 
http://perma.cc/8SLH-F7XV (noting the case of a cat used to deliver a cell phone into a prison). 
120 Mansour, supra note 116, at 195 (“Hudud penalties are not meant to frighten Muslims but to 
prevent the growth of a climate favorable to the existence and spread of such crimes.”). 
121 MOSKOS, supra note 4, at 89. 
122 See NAT’L REGISTRY OF EXONERATIONS, http://perma.cc/9STG-WRZS (providing detailed 
information on all exonerations of wrongfully convicted individuals in the United States since 
1989); see also THE INNOCENCE PROJECT, http://perma.cc/Y282-YZMV (helping to exonerate 
wrongfully convicted individuals through the use of DNA testing). 



408 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
incarceration may be a superior form of punishment than judicial corporal 
punishment as implemented in Islamic criminal law. That is, if an innocent 
individual is wrongfully convicted and subjected to judicial corporal 
punishment, the complete and irreversible damage has already been inflicted 
if he is later exonerated of the crime. Contrarily, if an innocent individual is 
wrongfully convicted and sentenced to incarceration, he can simply be 
released from prison immediately upon his exoneration. In both cases, one 
would hope, the individual would be sufficiently compensated for the error.  

In the most pragmatic sense, the benefits of incarceration in this regard 
must be couched in terms of a sliding scale, with a purely subjective tipping 
point. Put differently, if a wrongfully convicted individual is exonerated after 
spending one day of his sentence in prison, then clearly incarceration is a 
superior punishment to judicial corporal punishment. On the other extreme, 
however, if a wrongfully convicted individual is exonerated after spending 
twenty-five years of his sentence in prison, then many would say that judicial 
corporal punishment is superior to incarceration as a form of punishment. In 
the latter case, the individual effectively lost twenty-five years of his life for 
a crime that he didn’t commit when, under a judicial corporal punishment 
regime, he could have endured a temporary, albeit excruciating ordeal then 
been set free to go about his life.   

At which point one would be willing to undergo corporal punishment 
in lieu of incarceration is a purely subjective proposition; thus, there is no 
hard and fast line that can be drawn where, in terms of wrongful conviction, 
judicial corporal punishment is superior to incarceration. To put this into a 
practical perspective, however, consider that in 2013 there were eighty-seven 
wrongfully convicted individuals who were exonerated.123 The longest 
wrongful sentence was thirty-six years for an individual convicted in 1977.124 
The shortest wrongful sentence was served by three people who were 
wrongfully convicted in 2013 and later exonerated within the same year.125 
Assuming that they all actually went to prison, these wrongfully convicted 
individuals served a total of about 1,061.5 years, an average of 12.2 years per 
person.126 Thus, as an example, assume that an innocent person is wrongfully 
convicted and sentenced to twenty-five years in prison. And assume also that 
she knows she will be exonerated in twelve years. Would that individual 
rather endure an unjustified brutal corporal punishment and immediate 
release? Or would she rather endure twelve years of incarceration?  

These are quandaries which are inherently subjective. The point, 
however, is that, in terms of the individual who is exonerated very shortly 
 
                                                                                                                 
123 Exonerations by Year and Type of Crime, NAT’L REGISTRY OF EXONERATIONS, 
http://perma.cc/9KUE-QSZP (last visited Apr. 4, 2013). 
124 Summary View, NAT’L REGISTRY OF EXONERATIONS, http://perma.cc/3D43-D93L (last visited 
Apr. 4, 2014). 
125 Id. 
126 Id. 



2015] JUDICIAL CORPORAL PUNISHMENT 409 
 
after conviction, incarceration is clearly superior to judicial corporal 
punishment as implemented in Islamic criminal law. The other extreme is a 
matter for debate.  

4. Superiority of Incarceration vis-à-vis Excessively Dangerous 
Individuals 

Next, incarceration is superior to judicial corporal punishment as 
implemented in Islamic criminal law in regard to the treatment of certain 
individuals who simply pose an excessive risk of danger to society. For 
dangerous offenders who cannot be deterred or rehabilitated by way of 
judicial corporal punishment, for the safety of the community, the only 
prudent way of dealing with such individuals is incarceration. In this regard, 
recall that Islamic criminal law provides for the incarceration of such 
individuals until they repent and promise to reform their ways.127  

5. Inappropriateness of Judicial Corporal Punishment for Physically 
and Mentally Ill Persons 

Finally, it must be acknowledged that there are many classes of 
offenders who commit crime due to uncontrollable mental illness and, thus, 
cannot be deterred, incapacitated, or rehabilitated by means of judicial 
corporal punishment.128 Further, certain individuals who have the physical 
capacity to commit crime may not have the physical capacity to safely endure 
judicial corporal punishment as implemented in Islamic criminal law. With 
respect to these special offenders, recall that Islamic criminal law provides 
for the possibility of judicial discretion to provide a more suitable treatment 
for such persons129 and, accordingly, judicial corporal punishment is 
inappropriate for them. 

B. The Penal Policy of Judicial Corporal Punishment: Lessons from Islamic 
Criminal Law for Curing the Ills of Incarceration as a Primary Form of 
Criminal Punishment 

From the foregoing analysis, it is evident that judicial corporal 
punishment as implemented in Islamic criminal law is not without serious 
flaws and drawbacks and that incarceration has its clear advantages. 
However, the implementation of judicial corporal punishment in the United 
States to some degree would be superior to the status quo of mass 
incarceration. This section identifies the economic advantages of judicial 

 
                                                                                                                 
127 See supra Part II(C)(1)(a)(iv). 
128 However, that is not to say that incarceration serves as a superior alternative. Further elaboration 
on this point, however, goes beyond the scope of this Article. 
129 See supra Part II(C)(1)(a)(iii). 



410 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
corporal punishment as implemented in Islamic criminal law and seeks to 
boldly confront two important questions. First, is incarceration really more 
compassionate than corporal judicial punishment? And second, is 
incarceration really as effective as judicial corporal punishment in regard to 
the overlapping purposes of criminal punishment?  

1. Judicial Corporal Punishment as Implemented in Islamic Criminal 
Law is More Effective than Incarceration 

From analyzing and probing the realities of incarceration versus 
judicial corporal punishment as applied in Islamic criminal law, it is evident 
that the results of the former are far less effective, and far more costly, than 
the latter vis-à-vis the aforementioned common penal aspirations of 
deterrence and rehabilitation. Thus, U.S. lawmakers and taxpayers should 
seriously consider reforming the penal system by implementing judicial 
corporal punishment in lieu of incarceration to some degree by observing its 
application in Islamic criminal law.  

a. Rehabilitation 

In theory, incarceration serves to meet the rehabilitative policy of 
criminal punishment by separating the criminal from the causes and stimuli 
of her misbehavior, allowing her to stop and reflect on her life free from 
negative influences and, thereby, reenter society as a contributing, functional 
member. However, observation of prison sociology shows that imprisonment 
only exacerbates the negative influences in a criminal’s life. That is, due to 
the violent nature of prison life, individuals in prison often choose to 
associate with one of many groups or prison gangs for basic survival.130 
Joining a gang requires the individual to meet and form relationships with 
other gang members and, often, implicitly requires a commitment to carry 
out orders from leadership within the prison once released.131 

Thus, instead of coming out of prison reformed, rehabilitated, and 
ready to contribute positively to society, many inmates are released knowing 
that more crime is in their future. In this regard, a common punch line states 
that prison functions as a training institution for increasing criminal skills and 
that smalltime offenders enter prison for the first time inexperienced, only to 

 
                                                                                                                 
130 Orlando-Morningstar, supra note 117, at 1 (noting that “[i]n correctional institutions, there is a 
natural tendency for inmates to form groups”). 
131 See generally Marie L. Griffin & John R. Hepburn, The Effect of Gang Affiliation on Violent 
Misconduct among Inmates During the Early Years of Confinement, 33 CRIM. JUST. & BEHAV. 419 
(2006), available at http://perma.cc/U6QC-ZK99 (finding a positive correlation between gang 
affiliation and violent misconduct in prison inmates); see also Orlando-Morningstar, supra note 
117, at 8 (noting that “released prison gang members are expected to remain in contact with 
members still in prison and to conduct gang business outside prison”). 

http://dx.doi.org/10.1177/0093854806288038


2015] JUDICIAL CORPORAL PUNISHMENT 411 
 
come out of prison as seasoned professional criminals.132 While authoritative 
sources would argue that one’s individual resolve can overcome the pressure 
to conform to the criminality of fellow inmates,133 studies—along with the 
bare fact of recidivism rates—corroborate the proposition that imprisonment 
in general does not rehabilitate, it usually only leads to more crime.134 

Perhaps the answer to curing the problem of recidivism and making 
prison more effective at rehabilitation, then, is to pour more tax dollars into 
the system to pay for intensive vocational training, basic education classes, 
and even undergraduate, graduate, and postgraduate degree programs. 
Perhaps the answer is to double, triple, or quadruple the staff to make sure 
that no violence ever breaks out among the inmates, that disputes between 
prisoners are peaceably settled, and to assist each offender in his educational, 
emotional, spiritual, vocational, and interpersonal rehabilitation. However 
decent and wise this assertion may be, however passionately one argues for 
it, it is, politically, a near impossibility.135 Politics do not always coincide 
with wisdom and decency and, since the prisoner population is not a 
politically sympathetic group, few politicians are willing to take up its cause. 
No matter how correct and prudent it may be to significantly increase 
expenditures into the prison system to increase its rehabilitative efficacy, the 
means to achieve it are simply unreachable in a democracy such as ours. 
Thus, a realistic, yet maximally effective, solution must be found. 

Judicial corporal punishment as implemented in Islamic criminal law 
serves the rehabilitation purpose of criminal punishment much more 
effectively and at a much lower cost than incarceration. In the Islamic 
tradition, the family unit is the basic building block of society through which 
the underlying principles of Islamic society are developed and maintained; 
and the governmental authority very rarely intervenes in the family in a way 
that the family as a whole will be negatively affected.136 This, perhaps, is 
contrasted with the emphasis on individual freedoms and liberties as well as 
the role of the State in domestic disputes and the protection and education of 

 
                                                                                                                 
132 Martin H. Pritikin, Is Prison Increasing Crime?, 2008 WIS. L. REV. 1049, 1055 (2008) (referring 
to prison as “a ‘school’ for criminals”), available at http://perma.cc/J9AM-N4CV. 
133 See, e.g., Stanton E. Samenow, Do Prisons Really Make Offenders Worse?, PSYCHOLOGY 
TODAY (Apr. 9, 2011), http://perma.cc/2NL2-4Q23. Dr. Samenow notes that, in his conversations 
with inmates, it is clear that unambitious prisoners can remain neutral, work on rehabilitating 
themselves, and associate with like-minded inmates keen on rehabilitation and still maintain the 
respect of fellow inmates. Id. 
134 See, e.g., Edward J. Latessa & Christopher Lowenkamp, What Works in Reducing Recidivism?, 
3 U. ST. THOMAS L.J. 521, 522 (2006) (“[P]lacing low-risk offenders in with high-risk offenders 
may lead to an ‘education’ in anti-social behavior for the low-risk offender.”); see also Donald T. 
Hutcherson II, Crime Pays: The Connection Between Time in Prison and Future Criminal 
Earnings, 92 PRISON J. 315 (2012) (noting that individuals with a history of incarceration earn about 
$11,000 more in illegal income than do individuals without a history of incarceration). 
135 MOSKOS, supra note 4, at 66, 105. 
136 BHALA, supra note 22, at 862. 

http://dx.doi.org/10.1177/0032885512448607


412 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
children under a Western framework.137  

Thus, the Islamic approach to criminal punishment naturally accounts 
for the wellbeing of the family and seeks to utilize the family as a primary 
resource for rehabilitation of the criminal. Specifically, instead of tearing the 
criminal away from his spouse, child(ren), and/or parents through 
incarceration, the family unit is kept intact for the wellbeing of the family as 
a whole and, on a large scale, for the overall wellbeing of society.138 
Incarceration has the potential to separate children from their caregivers and 
role models, dependent spouses from their breadwinners, and aging parents 
from their offspring. 

However, this principle also works in the best interest of the criminal 
as an individual. That is, instead of being trapped in the proximity of (and 
thus subject to corruption by) other criminal minds, the offender in Islamic 
criminal law, upon undergoing the excruciating ordeal, is immediately turned 
over to the care and custody of his family.139 Due to the importance of the 
family as a unit, Islamic law presumes that the family members are close-knit 
and concerned for the wellbeing of each member.140 Thus, while the criminal 
heals and recuperates from his wounds, he is forced to bed rest in the family 
home where, ideally, the members of the family unit will convene, connect, 
and correct the errors in the criminal’s life.141  

b. Deterrence 

In theory, incarceration serves to meet the deterrence policy of criminal 
punishment by making imprisonment a severely unhappy, inconvenient, and 
stigmatized experience. But incontrovertible facts show that the recidivism 
rate in the United States is high; and, by all accounts, this rate has ostensibly 
remained stable.142 Indeed, studies show that roughly half of all inmates will 
return to prison again within three years of release, apparently undeterred by 
 
                                                                                                                 
137 Id. See also Karen J. Lugo, American Family Law and Sharia-Compliant Marriages, 13 
ENGAGE, no. 2, Jul. 2012, at 79, 80, available at http://perma.cc/MQ4W-2Z86.  
138 Mansour, supra note 116, at 200 (“The execution of the ‘bodily penalty’ allows the criminal to 
resume his work immediately thereafter; he is also not prevented from supporting himself and his 
children. . . . Living with one’s family keeps it intact and united. This differs from imprisonment 
whereby the offender is deprived of earning a living for himself and his family, which in turn may 
force the family into crime because of need.”). 
139 Id. at 216 (“[Flagellation] can be readily imposed and thereby causes a minimal deprivation of 
liberty for the accused. He may thereafter attend to his business and serve the interest of his family. 
It is also in the interest of the community which thereby avoids having to take him under its 
responsibility as is necessary in the case of imprisonment. By the same token, the delinquent who 
thus escapes imprisonment is saved from being corrupted by the influence of incorrigible 
prisoners.”). 
140 BHALA, supra note 22, at 993. 
141 See Susan C. Hascall, Restorative Justice in Islam: Should Qisas be Considered a Form of 
Restorative Justice?, 4 BERKELEY J. MIDDLE E. & ISLAMIC L. 35, 55 n.85 (2011). 
142 PEW CTR. ON THE STATES, supra note 10, at 2. 



2015] JUDICIAL CORPORAL PUNISHMENT 413 
 
the prior experience.143 In this regard, it is important to examine the reasons 
why released inmates are content with returning to prison and, further, why 
other individuals in society are content with entering prison in the first place. 

First, for some inmates, prison is the place where they feel safest.144 
That is, out in society, they may be forced to reside in the path of rival gangs, 
murderous enemies, or simple unemployment. Trapped in the cycle of 
criminality, they may lack the skills to obtain lawful employment or are 
subject to employment discrimination based on their criminal past.145 With 
the economic inability to relocate and start over, they simply accept their 
identity as lifelong criminals, yearning for the perverse safety and 
camaraderie of prison partisanship, not to mention the free housing, food, and 
medical care.146 Thus, in this sense, prison as a taxpayer-funded refuge fails 
to fulfill the deterrent policy of penology. 

On the other hand, judicial corporal punishment as implemented in 
Islamic criminal law serves the deterrence purpose of criminal punishment 
much more effectively and at a much lower cost than incarceration. First, the 
punishment of flogging is notoriously excruciating, a fact which simply 
cannot be obscured or twisted, thereby putting society on notice that 
commission of the legislated offenses can result in severe consequences.147 
Second, while amputation as a punishment in Islamic criminal law is harsh 
and contradictory,148 it must be acknowledged that the graphic and largely 
unconcealable nature of this punishment squarely meets the penal policy of 
deterrence. Further, under Islamic criminal law, the moment when judicial 

 
                                                                                                                 
143 See supra Part I; LANGAN & LEVIN, supra note 11 at 1; and PEW CTR. ON THE STATES, supra note 
10, at 2. 
144 Orlando-Morningstar, supra note 117, at 9-10 (“[S]ome prison gang members are more 
comfortable in prison, with the rest of their organization, than outside prison. Consequently, it is not 
uncommon for released gang members to purposely violate the conditions of their supervision in 
order to return to prison.”). 
145 See About, BAN THE BOX CAMPAIGN, http://perma.cc/6PPK-3DVX (last visited Apr. 3, 2014) 
(describing one of several grassroots movements aimed at ending job and housing discrimination 
against ex-offenders). 
146 See, e.g., Orin Kerr, Man Tries to Commit $1 Robbery to Get Health Care in Prison, VOLOKH 
CONSPIRACY (June 21, 2011), http://perma.cc/V9CT-QNV8 (noting the case of a North Carolina 
man with a growth on his chest, two ruptured disks, and a problem with his left foot with no job and 
no medical insurance who demanded $1 from a bank teller for the express purpose of receiving a 
prison sentence and, thereby, receiving the benefits of prison healthcare). But see Christopher Beam, 
Jailhouse Doc: What’s the Health Care System Like in Prison?, SLATE (Mar. 25, 2009), 
http://perma.cc/7JF7-SU6X (noting that, “at best, [prison healthcare] is about as good as a low-
income health plan. At worst, it’s almost nonexistent”). 
147 Ahmad Abd al-Aziz al-Alfi, supra note 53, at 231 (“The deterrent function of punishment serves 
as a warning to the public not to commit crimes, to forbid them from imitating the criminal lest they 
suffer his fate.”).  
148 See infra Part III(A)(1). 



414 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
corporal punishment is inflicted is purely temporary.149 Immediately after the 
ordeal is over, the offender is turned over to her family and, thus, the 
punishment offers no taxpayer-funded collateral benefits in the way that 
incarceration does and there is no perverse incentive to commit further 
crime.150  

2. Judicial Corporal Punishment is Less Costly than Incarceration 

Apart from the foregoing discussion of the superiority of judicial 
corporal punishment as implemented in Islamic criminal law in regard to the 
two penal purposes of rehabilitation and deterrence, judicial corporal 
punishment as implemented in Islamic criminal law is also superior to 
incarceration in the realm of economics. As aforementioned, annual federal 
expenditures on the prison system have exceeded $6.5 billion and annual 
expenditures on state corrections has amounted to $52 billion.151 

One may argue that prison privatization would save precious taxpayer 
dollars. This view, however, fails to take into account the evils and long-term 
drawbacks which can result from such an arrangement. Apart from the 
economic incentive of high crime rates and high recidivism rates to secure 
the largest possible “client base,” there are numerous other examples 
showing the ills of privatized prisons in regard to public safety, prison safety, 
rehabilitation of offenders, and the possibility of corruption.152 

As aforementioned, judicial corporal punishment as implemented in 
Islamic criminal law meets the penal purposes of rehabilitation and 
deterrence more effectively than incarceration, and it does so at a much lower 
cost. First, in regard to the penal purpose of rehabilitation, the policy of 

 
                                                                                                                 
149 Mansour, supra note 116, at 200 (“The hudud penalties are designed to avoid unreasonable 
limitations on individual freedom to the extent that they are ‘bodily penalties.’ They are executed 
for a limited duration and cause momentarily severe physical pain to the criminal and remain 
unforgettable to him so that in most cases, he will refrain from future criminal conduct.”).  
150 Id. 
151 See supra Part I. 
152 See, e.g., Barry Yeoman, Privatization Would Not Benefit the Prison System, in AMERICA’S 
PRISONS: OPPOSING VIEWPOINTS 71, 72-75 (Roman Espejo ed., 2002) (noting the cost-cutting 
incentives of private prisons and how it can lead to decreased safety due to insufficient staff, defunct 
technology, and insufficient facilities. For example, the author cites to, inter alia, the case of inmates 
escaping from an old motel converted into a penitentiary, outnumbered staff members who tied up 
and abused juvenile offenders, and outnumbered prison guards who engaged in sexual intercourse 
with inmates for protection); see also Jeff Becker, Privatization Would Benefit the Prison System, 
in AMERICA’S PRISONS, supra, at 66, 67 (noting the case of six inmates who escaped from a private 
prison by cutting a hole through the fence); and KARYL KICENSKI, CASHING IN ON CRIME: THE DRIVE 
TO PRIVATIZE CALIFORNIA STATE PRISONS 1 (2014) (noting the case of a Pennsylvania judge who 
was convicted for having accepted approximately $2.6 million in kickbacks from a private prison 
facility in exchange for rulings sentencing juveniles to the facility); see also generally, K.C. 
CARCERAL, PRISON, INC.: A CONVICT EXPOSES LIFE INSIDE A PRIVATE PRISON 219 (2006) (noting 
the “cost control” incentives for private prisons and their numerous ill effects). 



2015] JUDICIAL CORPORAL PUNISHMENT 415 
 
judicial corporal punishment as implemented in Islamic criminal law seeks 
to shift the cost away from the taxpayers and onto the families of offenders.153 
That is, instead of extracting dollars out of the taxpayer’s pocket for 
vocational training programs, educational classes, counseling, and religious 
resources for the betterment of the criminal, the family of the criminal 
becomes responsible for providing these resources. And, as to the penal 
purpose of deterrence, the taxpayer cost of administering justice via judicial 
corporal punishment as implemented in Islamic criminal law is essentially 
limited to the price of the weapon and the wage of the punisher.154  

3. Judicial Corporal Punishment as Implemented in Islamic Criminal 
Law is More Compassionate than Incarceration 

As mentioned above, the status quo of incarceration in the United 
States likely came about as a compassionate or remorseful response to the 
inequality, racism, and fundamental evil which corporal punishment seemed 
to represent in a most graphic way.155 And, to be sure, the infliction of 
corporal punishment is a strikingly graphic and brutal ordeal. However, the 
status quo of incarceration has not eliminated the threat of experiencing 
brutality and violence for imprisoned offenders.  

Indeed, in some cases, the experience of incarcerated life is more 
brutal, more violent, and more inhumane than the ordeal of judicial corporal 
punishment under Islamic criminal law. Thus, in regard to the idea of 
compassion for the bodily integrity of offenders subjected to the status quo 
of incarceration, judicial corporal punishment under Islamic criminal law is 
more compassionate. Finally, judicial corporal punishment under Islamic 
criminal law is more humane than the status quo of incarceration in regard to 
the collateral damage that is inflicted upon an offender’s friends, family, and 
community when he is separated from society and locked up. 

a. Inhumanity of Incarcerated Life 

Perhaps the most poignant argument militating against judicial corporal 
punishment is the repugnancy of the idea of the state taking an affirmative 
 
                                                                                                                 
153 See supra Part III(A)(1)(a). 
154 With today’s medical and scientific advancements, however, it should be acknowledged that 
taxpayers must bear a certain degree of costs for the administration of justice in Islamic criminal 
law. The facilities and personnel for administering judicial corporal punishment must be obtained 
with the utmost regard for the medical safety of the criminal and fundamental compassion. For 
example, a jurisdiction administering judicial corporal punishment would have to provide medically 
sanitary facilities for the ordeal. And, at every administration of judicial corporal punishment, there 
would have to be a qualified medical staff on site to inform the criminal of the process, instruct the 
punisher on the correct and lawful technique, and to ensure that there is emergency medical support 
available if necessary.  
155 See supra Part II(C)(2)(a)(iv). 



416 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
act to inflict pain on and violate the bodily integrity of a human being. Indeed, 
such a proposition is repugnant and difficult to stomach. However, crime is 
an unfortunate reality in society that must be addressed; offenders must be 
deterred from their wrongdoing and, if possible, rehabilitated in order to 
rejoin the community as a functioning member. 

The status quo of incarceration is largely premised on this fear against 
the state taking an affirmative action violating the individual autonomy and 
integrity of one’s person.156 Thus, instead of taking the affirmative act of 
inflicting corporal punishment on offenders, the state opts for taking the 
negative, less controversial act of incarcerating them.157 However, without 
substantial resources to make incarcerated life more civilized, less violent, 
and more amenable to rehabilitation (which, as previously discussed, is 
politically implausible in the United States)158, the negative act of 
incarceration only serves to sweep the brutal reality of criminal punishment 
into the yards, cells, and showers of prison, obscured behind fortified walls 
and largely free of outside attention from the media and members of the 
public. Incarceration is not necessarily more humane than judicial corporal 
punishment. 

Apart from self-harm, there are essentially two sources of violence to 
which an inmate may be subjected: prison guards and fellow inmates. First, 
one need only mention the notorious examples of the Stanford Prison 

 
                                                                                                                 
156 MURTAGH, supra note 113, at 66. This fear is a byproduct of classic American ideals of 
individual liberty and bodily autonomy and integrity, encapsulated in some of the most basic 
principles of our Constitutional and criminal jurisprudence. See, e.g., Skinner v. Oklahoma, 316 
U.S. 535 (1942) (finding that procreation is a fundamental right under the Constitution and that a 
state statute allowing the state to sterilize offenders convicted three or more times of “felonies 
involving moral turpitude” was unconstitutional under the Equal Protection Clause of the 
Fourteenth Amendment since some felonies of equal offense were specifically excluded from the 
act) (Stone, CJ., concurring); see also, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (finding 
that the “emanations” from the First, Third, Fourth, Fifth, and Ninth Amendments create 
“penumbral rights of ‘privacy and repose’” and that a state statute forbidding the counseling of 
married couples in contraception methods was an unconstitutional violation of a right to privacy) 
(Black & Stewart, JJ., dissenting); but see, Buck v. Bell, 274 U.S. 200 (1927) (finding that a state 
statute allowing the sterilization of mentally retarded persons committed to the state mental 
institution after a hearing did not violate the Due Process and Equal Protection Clauses of the 
Fourteenth Amendment) (Butler, J., dissenting). 
157 MURTAGH, supra note 113, at 66.  
158 See supra Part III(B)(1)(a). 



2015] JUDICIAL CORPORAL PUNISHMENT 417 
 
Experiment159 or, perhaps, the Abu Ghraib prison scandal160 to recognize the 
capacity of otherwise normal human beings to commit atrocious acts from a 
position of power. Nonetheless, despite the capacity for abuse, the use of 
guards is better than the alternative of leaving the prisoners to govern 
themselves.161 Unfortunately, the latter scenario is often the de facto case.162  

Second, inmates are faced with the possibility of violence from other 
inmates in a largely lawless setting from which escape is impossible.163 While 
doubt exists as to the veracity of the portrayal of prison life in popular culture 
through television, movies, and other forms of media, academia confirms that 
incarceration involves a substantial risk of being subjected to severe violence, 
semi-consensual and non-consensual sexual contact, and even death.164 In 
reality, though, no rational person can predict the kinds of repugnant acts that 
can occur within the cells and buildings that contain some of society’s most 

 
                                                                                                                 
159 The Stanford Prison Experiment was conducted by Stanford University psychology professor 
Philip Zimbardo in 1971. Kathleen O’Toole, The Stanford Prison Experiment: Still Powerful after 
All These Years, STANFORD NEWS SERVICE (Jan. 8, 1997) http://perma.cc/L7S4-BHNJ. The 
experiment involved a makeshift prison on campus and twenty-four student-subjects, chosen as the 
“most normal” out of a group of seventy-five candidates. Id. Some were assigned to be guards and 
the rest were assigned as prisoners. Id. Those assigned to be guards were “instructed that they were 
not to use violence but that their job was to maintain control of the prison.” Id. The experiment 
rapidly turned into a situation of horrific abuse carried out by the guards against the prisoners and, 
at the encouragement of the guards, the prisoners even abused each other. Id. For example, the 
guards forced the prisoners to undergo protracted exercise routines, removed their mattresses for 
bad behavior, only allowed them to use a bucket for excrement and forbade them from emptying it, 
and forced the prisoners to undergo other dehumanizing and degrading acts. Id. Although the 
experiment was to last between seven and fourteen days, it had to be prematurely stopped on the 
sixth day due to the behavior of the subjects. Id. 
160 Between 2003 and 2004, U.S. Army personnel stationed at Abu Ghraib prison in Iraq committed 
several serious human rights abuses against detainees following the fall of Saddam Hussein and the 
subsequent war in Iraq. Seymour M. Hersh, Torture at Abu Ghraib, NEW YORKER (May 10, 2004), 
http://perma.cc/A6EV-JDEW. The misbehavior included physical and sexual abuse, torture, rape, 
and even resulted in the deaths of some detainees. Id. Experts have drawn stunning comparisons 
between the Stanford Prison Experiment and the Abu Ghraib scandal. See generally George R. 
Mastroiann & George Reed, Apples, Barrels, and Abu Ghraib, 39 SOCIOLOGICAL FOCUS 239 
(2006). 
161 CARCERAL, supra note 154, at 220-221. 
162 MOSKOS, supra note 4, at 52 (“Although guards may act like they’re in charge, because of the 
sheer numbers, prisons are, in effect, run by prisoners. And without legal forms of settling disputes 
and conducting transactions, violence and criminality become the norm.”). 
163 As aforementioned, while incarceration is the best method for incapacitating offenders (short of 
capital punishment), criminal behavior and misconduct is rampant within the prison walls; see supra 
Part III(A)(2). 
164 See generally REBECCA TRAMMELL, ENFORCING THE CONVICT CODE: VIOLENCE AND PRISON 
CULTURE 19 (2012) (noting that interviewees in a study asserted that the portrayal of prison life in 
popular culture is misleading, but that ample data indicating an abundance of violence in prison 
refutes such assertions); see also MATTHEW SILBERMAN, A WORLD OF VIOLENCE: CORRECTIONS IN 
AMERICA 16 (1995) (“[I]n one way or another, survival in prison depends on adapting to violence 
as either perpetrator or victim.”). 

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418 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
dangerous minds.  

In contrast to the status quo of incarceration, judicial corporal 
punishment as implemented in Islamic criminal law can be surprisingly more 
compassionate. First, the certitude and finite nature of judicial corporal 
punishment as implemented in Islamic criminal law is superior to the horrific 
insecurity and perpetual uncertainty which prevails in the status quo of 
incarceration. That is, a criminal offender sentenced to incarceration, in 
reality, is not aware of what his experience in prison will be like. To be sure, 
there are some well-run prisons and, further, the nature of the offender, his 
interpersonal skills, and his personal inclination toward aggression plays a 
role, but statistically he is very likely to be involved in some degree of 
violence during his sentence, which may even exceed the level of violence 
which is meted out as corporal punishment in Islamic criminal law.165 
Further, due to the possibility of administrative complications and good-faith 
errors, he may not be certain of his safety or timely release upon the 
culmination of his sentence.166  

In contrast to this reality, the sentencing of judicial corporal 
punishment as implemented in Islamic criminal law is, without exception, 
absolutely precise. The offender knows exactly the punishment he is to 
receive and, when it is over, he knows his sentence has been forever satisfied. 
Further, judicial corporal punishment as applied in Islamic criminal law is 
more humane than incarceration in the sense that, following infliction of the 
punishment, the criminal is to be immediately turned over to the custody of 
her family who, in the Islamic tradition, cares most for her wellbeing. The 
family of the criminal is meant to nurture her, help correct her criminal 
proclivities, and, ultimately, rehabilitate her into society. The prison 
community under the status quo of incarceration, in general, does not fulfill 
any similar positive role. 

 
                                                                                                                 
165 See generally Silberman, supra note 166 (noting the author’s research of correctional issues in a 
maximum security prison over a fourteen-month period, which included several instances of 
violence). Silberman specifically notes the occurrence of eight homicides in a twenty-six-month 
period in the prison and describes their causes as anything from racial affiliation to sexual orientation 
to “snitching.” Id. at 24-25, 33-34. 
166 See, e.g., Complaint and Jury Demand, Ankeney v. Colorado, 1:14-cv-00007-BNB (D. Colo. 
Jan. 2, 2014). 
Ankeny is a class action lawsuit alleging that the Colorado Department of Corrections has failed to 
correctly account for the time served of several inmates, including factors which could lawfully 
mitigate the amount of time required, thus causing inmates to serve more time than they should. Id.; 
see also, Kirk Mitchell, Lawsuit Says Sentences for Thousands of Colorado Inmates Are Too Long, 
DENVER POST, Jan. 2, 2014, http://perma.cc/7ZRV-CA8G; and Jill Disis, Woman Accidentally is 
Put into Male Cellblock at Marion County Jail, INDPLS STAR, Mar. 26, 2014, http://perma.cc/U7FC-
K7LE (noting an administrative error which caused a female inmate to be put into a cell with nine 
other men for an unknown amount of time). 



2015] JUDICIAL CORPORAL PUNISHMENT 419 
 

b. Collateral Damage of Incarceration 

Finally, it is important to acknowledge the severe collateral damage 
that results when an individual undergoes incarceration. Often, incarceration 
results in the harm or total decimation of a familial, marital, or communal 
relationship. That is, when a spouse is incarcerated, someone is torn from a 
marital partner, a source of support, and perhaps the sole breadwinner. When 
a parent is incarcerated, a child may lose a caregiver and role model. When a 
contributor to society is incarcerated, a community loses a participant and an 
employer may lose an employee. All the while, those remaining on the 
outside are left to survive without the incarcerated individual. Family 
members who previously relied on the individual may be left to stagnate, 
eventually becoming a burden on fellow taxpayers and even, perhaps, new 
participants in the machine of criminality. 

To be sure, there are some criminal offenders who ought to be separated 
from their families, spouses, children, and/or the whole community for 
purposes of safety. However, deprivation of liberty via incarceration is only 
utilized in Islamic criminal law to the extent that the offender is shown to be 
incorrigible and unremorseful.167 In all other cases, judicial corporal 
punishment as implemented in Islamic criminal law is applied with an eye 
toward the overall wellbeing of the offender, his family, and his 
community.168 After infliction of the punishment, he is permitted to move 
freely about society, continue living with his family, and work to support 
himself and his household.169 Thus, judicial corporal punishment as 
implemented in Islamic criminal law is more compassionate than the status 
quo of incarceration to the extent that collateral harm to the spouse, children, 
and community of the offender is minimized and the family unit is kept intact 
if possible. 

PART IV: CONCLUSION AND PRACTICAL CONSIDERATIONS 

In conclusion, the purpose of this Article was to detail judicial corporal 
punishment as a superior alternative to the status quo of incarceration in the 
United States by pointing to the example of Islamic criminal law. Thus, this 
Article was narrowly tailored to the question at hand and did not address two 
important issues that are outside of its scope. First, the Article did not claim 
that judicial corporal punishment as implemented in Islamic criminal law is 

 
                                                                                                                 
167 Benmelha, supra note 54, at 217 (“[Incarceration] is usually reserved for incorrigible criminals 
and those who are deemed to be dangerous recidivists.”). 
168 Mansour, supra note 116, at 200 (“[T]he execution of the ‘bodily penalty’ allows the criminal 
to resume his work immediately thereafter; he is also not prevented from supporting himself and 
his children. . . . Living with one’s family keeps it intact and united. . . . The absence of the head of 
the family may lead the other members of the family into delinquent and criminal behavior.”). 
169 Id. 



420 IND. INT’L & COMP. L. REV. [Vol. 25:3 
 
the supreme answer to ridding the world of crime, rehabilitating offenders, 
and making the criminal justice system fairer. Rather, it argues that judicial 
corporal punishment as implemented in Islamic criminal law is superior to 
the status quo of mass incarceration, despite the drawbacks of judicial 
corporal punishment. Second, the Article did not attempt to provide a detailed 
framework through which judicial corporal punishment could be introduced 
practically into the U.S. criminal justice system.170 

 
                                                                                                                 
170 A few concepts, however, can be noted regarding the latter point. Professor Peter Moskos argues 
for the implementation of judicial corporal punishment in the United States based largely on the 
Singaporean and Malaysian models. MOSKOS, supra note 4, at 10. In doing so, Moskos notes first 
that flogging should never occur without the consent of the offender. Id. at 144. That is, if the 
convicted offender wishes to avoid corporal punishment and simply serve the standard prison 
sentence for his offense, then nothing should stop him from making that decision. Second, Moskos 
argues for a formula of two lashes substituted for each year that would be served in prison, with a 
minimum of one lash for shorter sentences and a maximum of thirty lashes. Id. In all cases, though, 
the advice of a doctor would always be taken into consideration. Id. at 145.