FINDING INSPIRATION IN ISLAMIC LAW FOR EXPANDING THE ROLE FOR FAMILIES OF MURDER VICTIMS IN THE UNITED STATES CAPITAL SENTENCING PROCEEDINGS

Abstract

Where the death penalty is still applied for murder, a victim’s family participates in the decision-making processes to varying extents depending on the legal system. Under Islamic law, the victim’s relatives play a central role in the sentencing of the offender. They are the ones who decide whether or not death penalty will be imposed. They may choose to have the offender executed. They may also choose to pardon the offender, either for free or in exchange for monetary payment. Yet, forgiveness is preferable and more rewarding according to the Qur’an, the Holy Book of Islam (5:45). The family also may waive the death penalty, but the state maintains an interest in punishing the offender with a discretionary penalty less than death. In the United States, however, the role of capital murder survivors is relatively limited. The only tool that survivors may use to participate in the sentencing processes of a capital trial is to provide victim impact evidence, in which they share their victimization experience with the sentencing authority. Courts do not allow family members of capital murder victims to voice an opinion about the sentence to be imposed. Victim sentencing opinions are deemed irrelevant even when the family members do not want the defendant to receive the ultimate penalty. This Dissertation argues that, inspired by the Islamic approach, the United States should extend the role of victims’ relatives in the capital murder sentencing process. Having suffered the most, family members should, at the very least, be given the opportunity to weigh in on the sentencing process by permitting their views on punishment to be presented to the jury, particularly when they want to speak for mercy.