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Finding Inspiration in Islamic Law for Expanding the Role FINDING INSPIRATION IN ISLAMIC LAW FOR EXPANDING THE ROLE FOR FAMILIES OF MURDER VICTIMS IN THE UNITED STATES CAPITAL SENTENCING PROCEEDINGS By © 2016 Najla Jeaash Submitted to the graduate degree program in Law and the Law Faculty of the University of Kansas in partial fulfillment of the requirements for the degree of Doctor of Juridical Science. ________________________________ Professor Jean K. Gilles Phillips (Chairperson) ________________________________ Professor Elizabeth Cateforis (Member) ________________________________ Professor Alice A. Craig (Member) ________________________________ Professor Michael Benza (External Member) Date Defended: July 21, 2016 The Dissertation Committee for Najla Jeaash certifies that this is the approved version of the following dissertation: FINDING INSPIRATION IN ISLAMIC LAW FOR EXPANDING THE ROLE FOR FAMILIES OF MURDER VICTIMS IN THE UNITED STATES CAPITAL SENTENCING PROCEEDINGS ________________________________ Professor Jean K. Gilles Phillips (Chairperson) Date approved: July 21, 2016 ii 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. iii DEDICATION To my mother, Samira Al-Dahmani, and my late father, Mahmoud Jeaash, the reasons behind everything I have and will ever achieve To my uncle, Nuredin Giayash, for being more than a father during all my years in the United States To my beloved brothers, Haitem, Mohamed, and Sadam, for always being there for me And to my friends in the United States, my second family and best supporters iv ACKNOWLEDGEMENTS In the name of Allah, the Most Gracious, the Most Merciful, First and foremost, I would like to thank my Creator for giving me the strength and patience to finish this dissertation. Without His blessing, I would not be here today. I would like to express my gratitude and deep appreciation to Professor Jean K. Gilles Phillips, my supervisor and the Chairperson of my dissertation committee, for her immense expertise, valuable instructions, and guidance. I greatly appreciate her kindness, flexibility, and understanding. I could not have imagined having a better advisor and mentor for my S.J.D. study. In addition to my supervisor, I would like to thank my committee members, Professor Elizabeth Cateforis and Professor Alice A. Craig, for their time and contribution to better my work. A very special thanks must also go to Professor Michael Benza, for giving me the honor of being the external member of my dissertation committee. It was his suggestion that I followed in choosing my dissertation topic. For this, I am immensely thankful. A sincere thank you to my former supervisor, Professor Melanie Wilson, for her precious support and direction during the initial course of this dissertation. I must acknowledge as well my outstanding editor, who truly won me over with her kindness and commitment to quality. Without her help, this Dissertation could never have met the required standards for legal writing. I am grateful also to the University of Kansas, the School of Law, and the Wheat Law Library, for creating the perfect environment to succeed and complete my degree. And to everybody else who assisted, advised, and supported me over the years to make this dissertation possible, I thank you. v TABLE OF CONTENTS ABSTRACT .................................................................................................................................. iii DEDICATION.............................................................................................................................. iv ACKNOWLEDGEMENTS ......................................................................................................... v I. INTRODUCTION.............................................................................................................. 1 II. THE FAMILIES OF MURDER VICTIMS PLAY A LIMITED ROLE IN THE UNITED STATES CAPITAL SENTENCING PROCEEDINGS ............................................ 7 An Overview of Victim Impact Evidence ........................................................................... 9 The Constitutionality of Victim Impact Evidence ......................................................... 10 a. Booth v. Maryland ...................................................................................................... 11 b. South Carolina v. Gathers ........................................................................................... 16 c. Payne v. Tennessee ..................................................................................................... 20 States’ Framework for the Admission of Victim Impact Evidence ............................... 27 a. Types of Information Included in Victim Impact Evidence ....................................... 29 b. Who Qualifies as a Victim Impact Witness and How Many Witnesses May Testify 36 c. Form of Victim Impact Evidence ............................................................................... 40 d. Timing of Admitting Victim Impact Evidence ........................................................... 43 e. Procedures for Admitting Victim Impact Evidence ................................................... 45 i. Notice ...................................................................................................................... 46 ii. Pre-Admissibility Hearing ...................................................................................... 46 iii. Jury Instructions ...................................................................................................... 47 iv. Cross-Examination of Victim Impact Witness ....................................................... 48 Victim Sentencing Opinions Calling for Death Penalty (Death Recommendations) ........ 50 The Validity of Death Recommendations after Payne ................................................... 51 Arguments for Permitting Death Recommendations ..................................................... 56 a. Allowing Victim Impact Evidence Reduces the Prejudicial Effect of Death Recommendations .............................................................................................................. 57 b. Sentencing Recommendations Are Already Admissible in Non-Capital Cases ........ 63 c. Permitting Sentencing Recommendations Serves Significant Interests ..................... 66 vi Victim Sentencing Opinions Calling for Life (Mercy Opinions) ...................................... 68 The Validity of Mercy Opinions after Payne ................................................................. 68 Arguments for Permitting Mercy Opinions ................................................................... 73 a. Mercy Opinions Do Not Harm the Defendant’s Constitutional Rights ...................... 74 b. Allowing Mercy Opinions Eliminates Discrimination Against Anti-Death Penalty Survivors ............................................................................................................................ 79 c. Permitting Mercy Opinions Helps Meet the Need for Closure .................................. 85 III. THE VICTIMS’ FAMILIES CONTROL THE OUTCOME OF CAPITAL MURDER CASES UNDER ISLAMIC LAW .......................................................................... 91 An Overview of Islamic Law (Shari’a) ............................................................................. 97 Sources of Islamic Law .................................................................................................. 98 a. The Qur’an .................................................................................................................. 98 b. The Sunnah ................................................................................................................. 99 c. The Ijma (Consensus of Opinion) ............................................................................ 103 d. The Qiyas (Analogical Reasoning)..........................................................................
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